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OF 

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TRIAL  EVIDENCE 


THE 
RULES  OF  EVIDENCE 

AND  OF  THE 

CONDUCT  OF  THE  EXAMINATION 
OF  WITNESSES 

In  Trials  at  Common  Law  and  in  Equity  as  Established 

in    the    United    States,   with  the 

Reasons  for  Them, 


A  Concise  Manual  Adapted  for  Use 
at  the  Trial  Table, 


By  WILLIAM  REYNOLDS, 

OF  THE  BALTIMORE  BAR. 


"As  the  rules  which  guide  all  legal  questions  are  comparatively  few, 
and  the  instances  which  depend  on  tliem  are  numberless,  and  only  by 
chance  will  any  future  instance  be  like  any  one  which  has  gone  before, 
he  [the  successful  lawyer]  learned  the  rules  and  how  to  apply  them 
and  let  the  instances  take  care  of  themselves." — Joel  P.  Bishof, 


CHICAGO: 

CALLAGHAN  &  COMPANY 

1911 


COPYRIGHT.  1911 

By 

WILLIAM  REYNOLDS 


T 
1911 


PREFACE 

This  work  is  an  enlargement  of  a  little 
book  written  by  me  and  published  twenty- 
seven  years  ago  entitled  The  Theory  of  the 
Law  of  Evidence  as  established  in  the  United 
States.  Its  object,  as  then  stated  in  its 
preface,  was  ''to  provide  for  members  of  the 
bar  and  students  an  additional  facility  for 
acquiring  such  an  accurate  general  knowl- 
edge of  the  rules  of  evidence  and  of  the  the- 
ory upon  which  they  have  been  adopted  as 
everj''  lam^er  must  carry  in  his  head  in  order 
to  be  able  to  try  cases  with  justice  to  his  cli- 
ents." For  this  purpose  it  was  undertaken 
to  present,  in  the  form  of  a  brief  treatise,  the 
law  of  evidence  as  a  complete  scientific  and 
rational  system  consisting  of  a  series  of  rules, 
each  one  adopted  for  special  reasons  founded 
upon  practical  experience,  but  all  directed  to 
the  common  purpose  of  providing  the  best  at- 
tainable method  of  getting  at  the  truth  in  re- 
gard to  controverted  questions  of  fact  with 
the  highest  degree  of  certainty  compatible 
with  the  nature  of  judicial  investigation.  In 
doing  this  I  endeavored  to  ordinarily  supple- 

iii 

66V?05 


IV  PREFACE 

ment  these  rules  by  a  statement  of  the  rea^ 
soning  upon  which  they  were  founded,  as  af- 
fording the  best  method  of  explaining  the 
proper  application  of  them  in  particular 
cases,  since  it  is  much  easier  to  remember 
one  reason  which  commends  itself  to  the  in- 
telligence than  to  recall  the  decisions  of  the 
various  cases  that  may  seem  most  nearly 
analogous  to  the  one  on  trial. 

The  work  has  been  long  used  with  ac- 
ceptance by  many  practicing  lawyers  as  a 
convenient  vade  mecum  for  the  trial  table, 
in  which  they  can  readily  find  a  clear  state- 
ment, supported  by  recognized  authority,  of 
the  law  applicable  to  almost  any  one  of  those 
questions  of  evidence  which  are  at  all  likely 
to  come  up  unexpectedly  in  the  course  of  a 
trial.  While  a  competent  lawyer  may  in  most 
cases  be  fully  satisfied  in  his  own  mind  as  to 
what  the  answer  to  all  such  questions  should 
be,  he  may  at  the  same  time  often  find  him- 
self unprepared  to  state  clearly  off-hand  the 
why  and  wherefore  of  his  opinion,  or  to  fur- 
nish, without  a  greater  delay  than  could  be  al- 
lowed him  in  the  course  of  a  trial,  an  ade- 
quate authority  to  sustain  it.  It  is  largely 
for  the  purpose  of  affording  assistance  to 
escape  the  embarrassment  to  which  a  lawyer 
would  be  otherwise  subjected  if  the  judge 


PREFACE  V 

should  in  such  a  case  call  for  his  authorities, 
that  my  book  has  been  revised  and  added  to, 
and  is  now  offered  to  my  brothers  of  the  bar 
in  its  present  form.  It  will,  I  think,  upon 
examination,  be  apparent  that  there  are  not 
many  of  the  questions  of  evidence  likely  to 
be  raised  unexpectedly  in  the  course  of  a  trial, 
for  which  there  will  not  be  found  in  this  vol- 
ume, if  not  a  direct  categorical  answer,  at 
least  a  well  established  rule  bringing  them 
within  its  terms,  and  clearly  showing  how 
they  ought  to  be  decided  upon  principle. 

One  question  liable  to  be  raised  in  every 
case  at  the  conclusion  of  the  plaintiff's  testi- 
mony is,  whether  he  has  sustained  the  bur- 
den imposed  upon  him  by  law  to  produce  evi- 
dence competent  to  prove  every  fact  neces- 
sary to  make  out  a  prima  facie  case  in  his 
favor — for  if  he  has  failed  to  do  this,  he  may 
be  nonsuited  on  motion  of  the  defendant.  It 
is  therefore  important  for  the  plaintiff's 
counsel  to  know  for  a  certainty  at  that  time 
whether  he  has  inadvertently  omitted  the 
proof  of  any  fact  required  to  be  established 
by  him,  and  equally  important  for  the  de- 
fendant's counsel  to  know  whether  every 
such  fact  has  been  established  by  competent 
evidence. 

In  Chapter  I  of  Part  III  on  the  Burden 


VI  PREFACE 

of  Proof  will  be  found  a  brief  but  comprehen- 
sive statement  of  all  facts  necessary  to  be 
proved,  and  of  the  character  of  the  evidence 
by  which  they  are  usually  established  in  al- 
most every  form  of  action  likely  to  be 
brought  in  ordinary  practice.  Such  informa- 
tion which  belongs  rather  to  the  domain  of 
substantive  law  than  that  of  the  law  of  pro- 
cedure, is  given  sparingly  if  at  all  in  most  of 
the  standard  works  on  Evidence  proper,  and 
can  generally  only  be  found  scattered  about 
under  various  heads  in  the  books  on  nisi  prius 
practice  or  trial  evidence.  The  convenience 
of  having  such  a  comprehensive  statement  at 
hand  for  ready  reference  at  the  trial  table  is 
obvious. 

The  increased  use  during  the  last  quarter 
of  a  century  of  typewritten  carbon  duplicates, 
telegrams,  telephone  messages,  photographs, 
sciographs  or  X  ray  pictures,  and  phono- 
graphic records,  as  instruments  of  evidence, 
has  made  it  necessary  for  the  trial  practi- 
tioner to  be  familiar  with  the  rules  applicable 
to  the  admission  of  testimony  of  this  char- 
acter, and  with  the  cases  showing  how  the 
courts  have  applied  these  rules  as  occasions 
have  arisen  therefor.  I  have  also  endeavored 
to  point  out  the  principles  on  which  all  these 
cases  have  been  decided  with  sufficient  ful- 


PREFACE  Vll 

ness  for  practical  use  in  discussing  intelli- 
gibly before  the  court  how  they  should  be  ap- 
plied in  the  particular  case  on  trial. 

In  fine  the  purpose  of  the  work  may  be 
briefly  summarized  as  an  endeavor  to  place 
at  the  ready  command  of  every  practitioner 
whatever  information  about  the  law  of  evi- 
dence he  is  most  likely  to  have  need  of  for 
immediate  use  at  the  trial  table. 

William  Reynolds. 

June  1,  1911. 


CONTENTS. 


INTRODUCTORY. 
Sec.  Page. 

1.  Definitions    3 

2.  General   division  of  the   subject    4 


PART   I.— RELEVANCY. 

Chapter  I. — Rules  of  Admission. 
Sec.  Page. 

3.  What  are  facts  in  issue    7 

4.  Direct  and  indirect  evidence   S 

5.  Facts  not  directly  in  issue,  but  relevant  thereto ...       9 

6.  Rules  to  determine  the  relevancy  of  certain  classes 

of  facts  not  directly  in  issue 9 

7.  Res  gestae,  or  facts  forming  part  of  the  same 

transaction;  statements  accompanying  an  act; 
conspiracy     11 

8.  Facts  showing  probable  cause  for  existence  or  non- 

existence of  fact  in  issue  15 

9.  Ordinary  course  of  business  16 

10.  Natural  effects  likely  to  have  been  produced  by  ex- 

istence or  non-existence  of  facts  in  issue;  com- 
plaints; facts  showing  animiis;  similar  occur- 
rences showing   intention    16 

11.  Facts  explanatory  of  relevant  facts 19 

Chapter  II. — ^Rui.es  op  Exclusion. 

12.  Res  inter  alios  ;  facts  not  directly  in  issue,  nor 

relevant  thereto  as  above  stated,  are  inadmissible    21 

iz 


X  CONTENTS 

Sec.  Page. 

13.  Not  all  facts  connected  with  another  by  way  of 

cause  and  effect  necessarily  relevant  thereto ...     22 

14.  Character,  hearsay  and  opinion  generally  irrelevant     23 

15.  Character  irrelevant  excepting  in  favor  of  a  per- 

son indicted  criminally,  or  when  directly  in  issue  24 

16.  Hearsay  excluded  except  in  certain  cases 26 

17.  Eeasons  for  the  rule  excluding  hearsay  27 

18.  Two  classes  of  exceptions  to  the  rule 28 

19.  First  class  of  exceptions  —  Admissions   30 

20.  How  admissions  may  be  made 32 

21.  The  whole  of  a  statement  made  at  the  time  must 

be  considered 33 

22.  Party    bound    by    the    admissions    of  —  (a)    his 

privies;  (&)  those  whose  interests  he  repre- 
sents; (c)  those  jointly  interested  with  him; 
(d)  those  whom  he  has  authorized  to  make  ad- 
missions, or  to  whom  he  has  referred  a  party 
for  information    34 

23.  Offer  of  compromise  not  an  admission 39 

24.  Admissions  made  under  duress,  excluded   40 

.  25.     Confessions    not    made     voluntarily,     excluded — 

What  deemed  involuntary 41 

26.  But  a  fact  first  discovered  by  means  of  an  in- 

voluntary confession  may  be  proved  by  other 
evidence    42 

27.  Sworn   confessions    made    by  an    accused    person 

while  under  examination  before  a  magistrate, 
excluded  as  involuntary   43 

28.  How  far  modified  by  statutes  permitting  accused 

to   testify,   quoere 44 

29.  Confessions   made    under   promise   of    secrecy    or 

obtained  by  deception,  not  involuntary 45 

30.  Recitals  of  public  facts  in  statutes  or  proclama- 

tions, and  entries  of  facts  made  in  oflicial 
registers,  admissible  in  evidence 47 

31.  Grounds    of    admissibility 48 


CONTENTS  Zl 

See,  Page. 

32.  Matters  of   general  public   history   in   accredited 

works     by     deceased     or     foreign     authors — 
Almanacs — Maps      49 

33.  Entries    in    books    of   corporation    admissible    in 

certain  cases    51 

34.  Records  of  judicial  proceedings  conclusive  proof 

of  the  substantive  facts  recited 52 

35.  But  not  of  the  correctness   of  the   decision  ren- 

dered, except  in  certain  eases 53 

36.  Eules  regulating  the  admissibility  and  conclusive- 

ness of  the  judicial  portions  of  records: 

(a)  Admissible  and  conclusive  as  between 
the  parties  and  their  privies;  57 

(h)  Inadmissible  in  all  other  cases,  except —    58 
1st.     That    judgments     declaratory    uf    the 
status    of    a   person    or    thing    are   admissible, 
and  generally  conclusive  proof  of  such  status; 
and  58 

2d.  That  adjudications  upon  questions  in- 
volving custom  and  pedigree  are  admissible 
in  certain  cases  as  between  others  than  parties 
or    privies    58 

37.  "Why  judgments   declaratory  of  the  status  of  a 

person  or  thing  are  always  admissible  to  prove 

it    59 

38.  Who  are  parties  to  a  judgment 60 

39.  Admissibility  of  record  dependent  upon  whether 

court  had  jurisdiction,   which  may   always   be 
inquired  into    61 

40.  Same  doctrine  applicable  to  foreign   as  well   as 

domestic    judgments    62 

41.  General     reputation     sometimes     admissible     in 

evidence 63 

42.  Second    class    of    exceptions    to    rule    excluding 

hearsay — Statements   made    under   certain   cir- 


Xll  CONTENTS 

Sec.  Page. 

cumstances   by  persons   since  deceased,   insane 

or  permanently  beyond  the  reach  of  process.  .     66 

43.  Evidence  given  in  former  proceeding  or  at  earlier 

stage  of  same  action 67 

44.  Dying    declarations    69 

45.  Declarations    made    in    the    ordinary    course    of 

business     69 

46.  Declarations    made    against   the    interest    of   the 

declarant     72 

47.  Declarations  of  testator  as  to  contents  of  his  will     76 

48.  Declarations  as  to  any  public  or  general  right  or 

custom     77 

49.  Declarations  as  to  matters  of  pedigree 79 

50.  Opinion  excluded  except  in  a  few  cases 83 

51.  Opinions   formed   from  personal   observation  ad- 

missible when  the  best  evidence  that  the  nature 

of  the  case  admits  of 84 

52.  Opinions   of  experts   on  matters   requiring  study 

or  experience,   admissible 87 

53.  Opinion  as  to  handwriting 90 


PAKT  II.— ON  PROOF. 

Chapter  I.— All  Facts  Must  Be  Proven  Unless  Judi- 
cially Noticed  ob  Admitted. 

Sec  Page. 

54.  Facts  must  be  proven  by  the  best  kind  of  ev- 

idence  attainable    93 

55.  Courts  disregard  all  facts  not  proven  in  the  cause 

on  trial,  except  in  two  cases 94 

56.  Facts  judicially  noticed 95 

67.    Facts  expressly  admitted  by  the  parties,  either 

by  their  pleadings  or  at  the  hearing ... . .  105 


CONTENTS  Xlll 

$•«,  Page. 

Chapter  II. — Oral  Evidence. 

58.  All  ultimate  facts  to  be  proven  must  be  estab- 

lished by  direct  oral  testimony,  except  in  four 
enumerated  cases    108 

59.  How  oral  evidence  may  be  taken 110 

60.  Oral  evidence  must  be  direct  but  may  be  supple- 

mented by  demonstration  proof Ill 

61.  Photographs     113 

62.  Communication  by  telephone   116 

63.  Phonographic   records    119 

Chapter  III. — When  Oral  Evidence  Excluded. 

64.  Conclusive  presumptions  of  law  may  not  be  con- 

tradicted by  oral  evidence — Conclusive  pre- 
sumptions— Estoppels    121 

65.  Oral  testimony  excluded  as  to  matters  of  which 

the  law  requires  a  full  official  record  to  be  kept.   128 

66.  The  contents  of  a  written  instrument  can  only  be 

proved  by  production  of  the  document  itself, 
except  in  certain  cases 130 

67.  Attested  documents  must  be  proved  by  at  least 

one  of  the  subscribing  witnesses,  if  any  such  is 
alive  or  can  be  found 134 

68.  Exceptions  to  rule  requiring  attesting  witnesses 

to  be  examined   136 

69.  The  contents  of  public  documents  may  be  proved 

by   copies — Certified   copies    139 

70.  Rule  requiring  primary  evidence  of  the  contents 

of  documents  modified  by  statutes  making 
certified  copies  admissible  in  evidence 143 

71.  Secondary  evidence  of  documents  received  in  cer- 

tain cases  where  party  has  shown  his  inability 
to  produce  the  original  in  court — Notice  to 
adverse  party  to  produce  documents 144 

72.  Degrees    of    secondary    evidence     recognized    in 

America,  but  not  in  England 148 


XtY  CONTENTS 

See.  Page. 

73.  Secondary  evidence  may  be  given  of  the  general 

result    of   a   collection    of   documents    too    nu- 
merous to  be  conveniently  examined  in  court.  .    149 

74.  Oral   testimony    may    not   be    given  to   vary    the 

terms   of   a   written    contract 150 

75.  This  rule  only   extends  to   writings  intended   by 

the   parties    as    a   binding    statement    of    their 
transactions      153 

76.  And  to  controversies  between  the  parties  to  the 

instrument  and  those  claiming  under  them.  ...   158 

77.  How  far  the  meaning  of  a  writing  may  be  ex- 

plained by  oral  testimony  160 


PABT  III.— ON  THE  PRODUCTION  AND  EFFECT  OF 
EVIDENCE. 

Chapter  I. — Burden  of  Proof. 
See.  Page. 

78.  Burden  of  proof  lies  on  the  party  substantially 

asserting  the  affirmative  of  the  issue 165 

79.  Except   where  a   disputable   presumption  of  law 

exists  in  his  favor 167 

80.  Or    the    subject    matter    of    his    allegation    lies 

peculiarly  within  the  knowledge  of  the  other 
party     175 

81.  Burden  of  proof  in  particular  classes  of  cases..   178 

82.  Jurisdictional  facts   179 

83.  Eight   of   plaintiffs   to    sue   and   liability   of    de- 

fendants to  be  sued  in  special  characters,  such 
as  partners,  executors,  administrators,  trustees, 
receivers,  assignees,  heirs,  devisees,  legatees  or 
distributers,  or  as  associations,  or  corporations, 
or  as  husband  or  wife    183 

(a)  Partners     183 

(b)  Executors  and  Administrators   185 


CONTENTS  XT 

Sea.  Tage. 

(c)  Trustees 187 

(d)  Eeceivers    189 

(e)  Assignees      192 

(f)  Heirs,    Devisees,     Legatees    and    Distrib- 

uters,   194.      Wills 197 

(g)   Associations    199 

(h)  Corporations    201 

(i)  Husband  and  Wife    205 

84.  Burden  of  proof  in  actions  ex  contractu 209 

85.  Burden  of  proof  in  actions  ex  delicto 211 

86.  Special  rules  as  to  burden  in  particular  form  of 

action  ex  delicto    212 

on  case  for  negligence    213 

against  public  officers  for  breach  of  duty....  214 

for  deceit   and  fraud    214 

for  wrongful  conversion  of  personal  property. .  215 

for  trespass  to  personal  property 216 

for  trespass  to  real  property 216 

for   nuisances    217 

for  replevin    217 

for  assault  and  battery   218 

for  malicious   prosecution    220 

for  false  arrest  and  imprisonment    222 

for  slander  or  libel   224 

for  alienating  affections  of  spouse   227 

for  enticing  away  a  servant 228 

for   seduction    228 

for   criminal   conversation    229 

for  ejectment   230 

87.  Burden  of  proof  when  limitation  pleaded 230 

88.  When  burden  of  proof  on   defendant 231 

89.  Quantity  of  evidence  required  to  sustain  burden, .  234 

Chapter  II. — Eight  to  Begin. 

90.  Party  who  begins  must  produce  his  entire  case. .   239 

91.  Plaintiff  has  right  to  begin  when  the  burden  of 


XVi  CONTENTS 

Sec.  Page. 

any  of  the  issues  is  on  him,  or  he  seeks  sub- 
stantial unliquidated  damages   241 

Chapter  III. — Competency  of  Witness. 

92.  All    witnesses    presumed    competent    unless    ob- 

jected to — When  objection  must  be  made 244 

93.  What  rendered  a  witness  incompetent  at  common 

law — Want  of  mental  capacity — Want  of  relig- 
ious  belief — Interest — Being    husband    or   wife 

of   party    245 

93a.  Witnesses  forbidden  to  testify  as  to  certain  mat- 
ters and  privileged  as  to  others 253 

94.  Confidential  communications  between  husband  and 

wife     254 

95.  Judges  may  not  be  examined  as  to  certain  mat- 

ters      254 

96.  Grand  and  petit  jurors  may  not  be  examined  as 

to    their   consultations    256 

97.  Communications  made  to  public  officers  or  grand 

jurors,    with   a   view    to    criminal   prosecutions, 
may  not  be  disclosed    258 

98.  State  secrets  may  not  be  disclosed 258 

99.  Parties  to  negotiable  instruments  incompetent  to 

impeach    them     259 

100.  Communication  to  legal  adviser  may  not  be  dis- 

closed by  him    260 

101.  Privilege  of  client  as  to  disclosing  communication 

made  to  legal  adviser    262 

102.  Privilege  as  to  facts  tending  to  criminate  witness  263 

103.  Privilege  of  government  and  state  oflScials  as  to 

public   matters    266 

104.  Cases  where  corroborative  evidence  required....   266 

105.  Prosecutions  for  treason    267 

106.  Prosecutions  for   perjury    267 

107.  To  contradict  answer  in  equity  called  for  upon 

oath    268 


CONTENTS  XVll 

Sec.  Page. 

108.  Generally  required  to  establish  general  usage  or 

proof  of  adultery    268 

109.  Testimony  of  an  accomplice  should  generally  be 

corroborated  to  warrant  conviction   268 

Chapter  IV. — Examination  of  Witnesses. 

110.  All   witnesses  must   be   examined   upon   oath    or 

afl5rmation   270 

111.  How  oral  evidence  may  be  taken 271 

112.  When  and  how    objections  to  evidence  may  be 

made  273 

113.  Examination  in  chief — Leading  questions    275 

114.  Eefreshing  memory 279 

115.  Cross-examination — Questions    affecting    credibil- 

ity— Leading   questions    281 

116.  How   far  answers  on   cross-examination   may   be 

contradicted    286 

117.  When  proper  foundation   laid   on   cross-examina- 

tion,  previous  inconsistent  statements  may  be 
proved    288 

118.  Previous  inconsistent  statements  in  writing  may 

not  be  proved  unless  writing  first  shown  to  wit- 
ness or  its  absence  explained  289 

119.  Re-examination — Restricted     to     explanation     of 

statements  on  cross-examination — Leading  ques- 
tions      290 

120.  Impeaching  credit  of  witness,  in  what  cases  al- 

lowable     292 

121.  Proof  of  particular  facts  tending  to  show  bias, 

or  previous  conviction  of  an  infamous  crime . .    295 

122.  Proof  of  general  reputation  for  want  of  veracity.   297 

Chapter  V. — Production  of  Documents. 

123.  How  party  to  suit  may  compel  his  adversary  to 

produce  documents   300 


XVlll  CONTENTS 

Sec.  Page. 

124.  When   an  inspection   of  documents  in  the  hands 

of  opposite  party  will  be  allowed  at  common 
law    302 

125.  Statutory  enactments  upon  this  subject    303 

126.  When  production  or  inspection  of  documents  may 

be  compelled  in  equity   304 

127.  Production  of  documents  in  hands  of  one  not  a 

party    may    be    compelled    by    subpoena    duces 

tecum    307 

128.  How   documentary   evidence  is   introduced 309 

129.  Effect  of  alteration  or  spoliation  of  documents.  .  312 

Chapter  VI. — Production  of  Persons  and  Things. 

130.  Production  of  persons  or  things  for  inspection  by 

court  or  jury    318 

131.  Power   to  compel   parties   to   submit  to   personal 

examination     319 

132.  Power  to   seize  and  impound  things  to  be  used 

as  evidence    320 


PART    IV.— ON   THE    CONDUCT   OF  THE   EXAMINA- 
TION  OF  WITNESSES. 

Chapter  I.^Examination  in  Chief. 
Sec.  Page. 

133.  Examination   of  witnesses,  an  art 323 

134.  Object  of  examination  in  chief,  and  how  accom- 

plished       325 

135.  The  ordinary  witness    325 

136.  Questions    should    be    simple,    short    and    delib- 

erately  put    326 

137.  The  swift  witness    327 

138.  The  hostile  witness    328 


CONTENTS  ax 

Seo.  Page. 

1S9.    Duties  of  opposing  counsel  during  examination  in 

in  chief  329 

140.  Leading  questions — Frivolous  objections   330 

Chapter  II. — Cross-Examination, 

141.  Sergeant  Ballatine's  theory  of  cross-examination.  332 

142.  Never  ask  a  question  without  a  definite  object .  .  333 

143.  General  character  of  cross-examination,   how  de- 

termined      334 

144.  Things  to  be  avoided  in  cross-examination 336 

145.  Duties  of  opposing  counsel  during  cross-examina- 

tion   338 

Chapter  III. — ^Ee-examination. 

146.  Purpose  and  scope  of  re-examination 340 

147.  Duties  of  opposing  counsel  during  re-examination  341 


THE  RULES  OF  EVIDENCE  AND  OF 
THE  CONDUCT  OF  THE  EXAMINA- 
TION OF  WITNESSES  IN  TRIALS  AT 
COMMON  LAW  AND  IN  EQUITY 


AS 


ESTABLISHED    IN    THE    UNITED 

STATES,  AND  THE  REASONS 

FOR  THEM. 


TRIAL  EVIDENCE, 


INTRODUCTORY. 


§  1.  Definitions.— As  a  judicial  decision  is 
nothing  more  than  the  application  of  the  es- 
tablished principles  of  law  to  a  given  state 
of  facts,  it  follows  that  whenever  any  tribunal 
pronounces  a  judgTQent  it  must  necessarily 
assume  the  existence  of  certain  facts.  Unless 
the  facts  so  assumed  by  the  tribunal  have 
taken  place  in  its  presence,  it  is  obvious  that 
it  can  acquire  knowledge  of  their  existence  or 
non-existence  only  by  means  of  information 
imparted  to  it  upon  the  subject;  and  as  it 
would  be  clearly  impracticable  to  impose 
upon  courts  the  labor  of  collecting  such  in- 
fonnation  in  regard  to  every  case  brought 
before  them,  experience  has  shown  that  the 
most  convenient  as  well  as  efficacious  method 
of  administering  justice  is  that  courts,  in  de- 
termining questions  of  fact,  should  always, 


4  INTRODUCTORY 

except  in  some  matters  hereafter  to  be  no- 
ticed, be  governed  in  making  their  decisions 
solely  by  such  information  as  may  have  been 
produced  before  them  by  the  parties  to  the 
proceeding  in  accordance  with  certain  pre- 
scribed rules  of  law.  If  they  were  allowed  to 
decide  on  impression  or  information  acquired 
elsewhere,  not  only  would  it  be  impossible  for 
a  superior  tribunal,  the  parties,  or  the  public, 
to  know  on  what  ground  the  decision  was 
rendered,  but  it  might  be  founded  on  common 
rumor  or  something  else  equally  untrust- 
worthy, which  the  party  to  whose  prejudice 
it  operated  would  have  had  no  opportunity 
of  confuting.^  The  information  thus  im- 
parted to  the  court  upon  which  to  found  its 
decision  is  called  Evidence  ;  and  the  rules  reg- 
ulating its  admissibility,  the  method  of  its 
production,  and  its  effects,  constitute  the 
Law  of  Evidence. 

§2.  General  division  of  the  subject.— 
These  rules  of  Evidence  have  been  divided 
into  three  clases,^  namely  those  relating  to 

iBest  Ev.,  §§  38,  88. 

2  This  classification,  which  has  been  adopted  by  Sir 
Jas.  F.  Stephen  in  his  India  Evidence  Act  and  his 
Digest  of  the  Law  of  Evidence,  commends  itself  as 
more  logical  than  that  made  by  any  other  writer  on 
the  subject. 


INTRODUCTORY  5 

I.  Relevancy — by  which  is  determined 
what  facts  may  be  received  in  evidence  in  any 
given  case. 

II.  Proof — by  which  are  defined  the 
means  whereby  the  existence  or  non-existence 
of  relevant  facts  may  be  made  apparent  to 
the  court. 

III.  Production  and  effect  of  evidence. 
These  will  now  be  considered  in  their  order. 


PART  I. 

RELEVANCY. 


CHAPTER  I. 

RULES  OF  ADMISSION". 

§3.  What  are  facts  in  issue.— Whatever 
facts  are  necessarily  involved  in  any  question 
submitted  to  a  court  for  its  determination  are 
said  to  be  '*in  issue,"  and  evidence  as  to  their 
existence  or  non-existence  is  always  relevant. 
Thus  in  the  trial  of  an  indictment  for  murder, 
the  facts  that  the  deceased  came  to  his  death 
by  other  than  natural  means,  that  those 
means  were  put  into  operation  by  the  accused, 
and  that  he  was  actuated  by  malice  in  so 
doing,  are  all  facts  in  issue  because  they  are 
all  necessarily  involved  in  the  charge  of  mur- 
der. So,  also,  in  a  suit  for  damages  for  a 
tort,  the  commission  of  the  wrong  by  the  de- 
fendant, as  well  as  the  extent  of  the  injury 
inflicted,  and  the  loss  occasioned  to  the  plain- 
tiff thereby,  are  facts  in  issue.  Whenever 
any  material  fact  is  alleged  in  the  pleadings 

7 


8  RELEVANCY  [PART  I 

of  a  cause  by  either  party  and  is  denied  by 
the  other,  that  fact  is  '*in  issue;"  but  in  or- 
der that  a  fact  may  be  in  issue  it  is  not  nec- 
essary that  it  be  specifically  alleged  or  denied 
in  the  pleadings;  it  is  sufficient  that  it  con- 
stitutes one  of  the  component  parts  of  a  fact 
so  alleged  or  denied. 

§4.  Direct  and  indirect  evidence.— Facts 
in  issue  may  be  proved  either  by  direct  evi- 
dence, or  by  indirect,  otherwise  called  cir- 
cumstantial evidence.  By  direct  evidence  of 
a  fact  is  meant  the  statements  of  persons  who 
have  perceived  its  existence  by  means  of 
their  senses,  or  the  production  of  the  thing 
itself  before  the  court,  where  the  fact  to  be 
proved  is  its  present  existence  or  condition. 
By  indirect  evidence  is  meant  the  proof  of 
some  other  fact  or  facts  from  which,  taken 
either  singly  or  collectively,  the  existence  of 
the  particular  fact  in  question  may  be  in- 
ferred as  a  necessary  or  probable  conse- 
quence. Facts  not  directly  in  issue,  but  which 
may  be  proved  for  the  purpose  of  establish- 
ing the  existence  or  non-existence  of  any  fact 
in  issue,  are  called  * 'facts  relevant  to  the  is- 
sue.'* These  facts  relevant  to  the  issue  may 
be  proved  either  by  direct  or  indirect  evi- 
dence in  the  same  manner  as  a  fact  in  issue, 
and  so  also  may  any  facts  which  are  relevant 


CHAP.  l]  RULES    OF    ADMISSION  9 

to  prove  them,  unless  in  the  opinion  of  the 
judge  the  facts  offered  for  this  purpose  are 
too  remote  from  the  issues  on  trial  to  be 
material.^ 

§  5.  Facts  not  directly  in  issue,  but  relevant 
thereto.— Whenever  any  fact  or  series  of  facts 
would,  if  true,  conclusively  establish  the  ex- 
istence or  non-existence  of  any  fact  in  issue, 
or  of  any  fact  relevant  thereto,  such  fact  or 
series  of  facts  is  always  relevant,  and  proof 
thereof  may  be  given  in  evidence;  but  when 
the  effect  of  proving  a  fact  offered  in  evi- 
dence would  only  be  to  render  more  or  less 
probable  the  existence  or  non-existence  of  a 
fact  in  issue  or  relevant  thereto,  then  the 
question  of  its  admissibility  becomes  one  of 
much  more  difficulty,  and  must  be  deter- 
mined by  the  sound  discretion  of  the  judge 
under  all  the  circumstances  of  the  case,  ac- 
cording to  the  degree  of  light  which  it  would 
throw  upon  the  matter  in  issue,  subject,  how- 
ever, to  certain  established  rules  by  which 
some  classes  of  facts  are  required  to  be 
always  admitted  as  relevant  while  some  other 
classes  are  excluded  as  irrelevant. 

§6.    Rules  to  determine  the  relevancy  of 

3  Ste.  Dig.,  art.  2 ;  Tay.  Ev.,  §  316 ;  Alexander  v. 
United  States,  138  F.  S.,  353,  356. 


10  RELEVANCY  [PART I 

certain  classes  of  facts  not  directly  in  issue.— 
These  rules  are  to  a  certain  extent  arbitrary, 
and  are  mostly  founded  upon  the  result  of 
practical  experience  rather  than  based  upon 
any  strict  logical  theory.  This  is  necessary 
from  the  fact  that  absolute  certainty  as  to 
any  fact  is  unattainable  by  means  of  human 
evidence,  except  perhaps  in  some  cases  where 
the  matter  is  apparent  to  our  own  senses.  In 
every  other  case  the  most  that  can  be  at- 
tained is  moral  certainty,  which  has  been  de- 
fined as  such  a  high  degree  of  probability  as 
would  justify  a  prudent  man  under  the  cir- 
cumstances of  the  case  in  acting  upon  it  as  if 
it  were  an  absolute  certainty.  It  therefore 
follows  that  moral  certainty  is  a  question  of 
prudence  rather  than  of  calculation,  and  con- 
sequently the  only  practical  rules  that  can  be 
formulated  as  to  the  relevancy  of  those  facts 
from  the  existence  of  which  a  fact  in  issue 
may  be  probably  inferred,  are  mere  enumera- 
tions, on  the  one  hand,  of  certain  classes  of 
facts  which  have  been  ascertained  by  experi- 
ence to  be  capable  of  supporting  an  inference 
as  to  other  facts  sufficiently  probable  to  be 
the  foundation  of  a  legal  judgment,  and  on 
the  other  hand,  of  certain  other  classes  of 
facts  from  which  no  inference  could  be  drawn, 
carrying  with  it  such  a  high  degree  of  prob- 


CHAP.  l]  RES   GESTAE  11 

ability  as  would  justify  any  court  in  making 
it  the  basis  of  its  decision. 

§  7.  Res  Gestae,  or  facts  forming  part  of 
the  same  transaction;  statements  accompany- 
ing an  act;  conspiracy.— We  will  first  proceed 
to  consider  those  rules  which  define  the 
classes  of  facts  that  are  considered  relevant. 
As  it  is  the  general  practice  of  mankind  to 
judge  of  the  probability  of  an  alleged  event 
by  considering  the  circumstances  under 
which  it  is  said  to  have  taken  place,  and  as 
these  attending  circumtsances  often  afford 
the  best  interpretation  of  the  meaning,  pur- 
pose and  character  of  an  action,  it  has  been 
laid  down  as  a  well  settled  rule,  that  all  facts 
so  intimately  connected  with  the  facts  in  is- 
sue as  to  form  part  of  the  same  transaction 
or  subject  matter  must  be  deemed  relevant  to 
it.^     Such   facts    are   sometimes   called   res 

^  Ste.  Dig.,  art.  3.  No  authoritative  rule  of  law 
of  general  application  has  yet  been  stated  to  deter- 
mine whether  any  particular  facts  are  or  are  not 
parts  of  the  same  transaction  with  the  facts  in  issue. 
See  Vicksburg  &  Meridian  R.  R.  Co.  v.  O'Brien,  119 
U.  S.,  99,  105 ;  People  v.  Vernon,  35  Cal.,  49 ;  95  Am. 
D.,  1,  note;  Augusta  Factory  v.  Barnes,  72  Ga.,  217; 
53  Am.  R.,  836 ;  Little  Rock,  etc.,  Ry.  Co.  v.  Leverett, 
48  Ark.,  333;  3  S.  W.  50;  3  Am.  St.  R.,  230,  and 
note;  Ward  v.  White,  86  Va.,  212;  9  S.  E.  1021;  19 


12  RELEVANCY  [PART I 

gestae,  and  whenever  the  fact  in  issue  is  the 
doing  of  any  act,  they  include  all  accompa- 
nying statements  made  by  the  actors  in  so 
far  as  calculated  to  explain  their  own  ac- 
tions, ''for  these,  when  the  nature  and  qual- 
ity of  the  act  are  in  question,  are  either  to  be 
regarded  as  part  of  the  act  itself,  or  as  the 
best  and  most  proximate  evidence  of  the  na- 
ture and  quality  of  the  act. "  ^  It  must  be  kept 
in  mind,  however,  that  this  rule  only  extends 
to  statements  made  simultaneously  with  the 
doing  of  the  act  which  they  are  thus  deemed 
relevant  to  explain.  So,  also,  whenever  the 
bodily  or  mental  feelings  of  an  individual  are 
relevant  to  the  issue,  the  usual  expressions 

Am.  St.  E.,  883;  Pinney  v.  Jones,  64  Conn.,  525, 
537 ;  30  A.  762 ;  42  Am.  St.  R,  210 ;  Barker  v.  St. 
Louis,  etc.,  R.  R.,  126  Mo.,  143;  28  S.  W.  866;  26 
L.  R.  A.  843 ;  47  Am.  St.  R.,  646.  See,  also,  Prof.  J. 
B.  Thayer's  article  in  Am.  Law  Record,  vol.  XIV,  p. 
819,  and  XV,  p.  1,  on  Reg.  v.  Beddingfield  (1879)  ; 
also,  Kirby  v.  Com.,  77  Va.,  681;  46  Am.  R.  747. 
Contra,  People  v.  Ah  Lee,  60  Cal.,  85.  Sudden  ex- 
clamations and  outbursts  by  the  by-standers  belo  part 
of  res  gestae.  O'Rourke  v.  Citizens'  Street  Ry.,  103 
Tenn.,  124;  52  S.  W.  872;  46  L.  R.  A.  614;  76  Am. 
St.  R.,  639. 

»  1  Star.  Ev.,  *87 ;   1  Gr.  Ev.,  §  108 ;  Ste.  Dig., 
art.  8;  1  Elliott  Ev.,  §  154. 


CHAP.  l]  RES   GESTAE  18 

of  such  feelings  made  at  the  time  are  admis- 
sible in  evidence.  Thus,  the  declarations  of 
a  party  himself  are  received  to  prove  his  con- 
dition, ills,  pains  and  symptoms,  whether 
arising  from  sickness  or  from  an  injury  by 
accident  or  violence,  but  they  must  be  con- 
fined strictly  to  such  complaints,  expressions 
and  exclamations  as  furnish  evidence  of  a 
present  existing  pain  or  malady,  and  are 
made  contemporaneously  or  nearly  so  with 
the  main  event  alleged  as  its  cause.  Any- 
thing in  the  nature  of  narration  must  be 
excluded.^ 

Under  this  rule  admitting  the  t^s  gestae  in 
evidence,  whenever  two  or  more  persons  are 

^  See  Insurance  Co.  v.  Mosley,  8  Wall.,  397,  where 
this  whole  subject  is  fully  discussed.  By  the  ruling 
in  this  case,  which  has  been  much  criticized,  the  dec- 
larations of  a  party,  since  deceased,  that  he  had  been 
injured  by  a  fall  down  stairs,  were  admitted  in  evi- 
dence, although  not  made  until  after  his  return  to 
his  room  subsequent  to  the  alleged  accident;  the  rule 
of  law  laid  down  in  the  opinion  corresponds,  however, 
with  that  in  the  text,  the  words  "contemporaneously 
or  nearly  so"  being  somewhat  liberally  construed. 
See,  also,  Ohio  &  Miss.  R.  R.  Co.  v.  Stein,  133  Ind. 
243;  32  K  E.,  831 ;  19  L.  R.  A.,  733  and  note;  Chris- 
topherson  v.  Chicago,  etc.  R.  R.  Co.,  135  Iowa,  409, 
415;  109  N.  W.,  1077:  124  Am.  St.  R.,  284,  290. 


14  RELEVANCY  [PART  I 

charged  with  conspiring  together  to  commit 
an}'  offense  or  actionable  wrong,  after  evi- 
dence sufficient  in  the  opinion  of  the  court  to 
establish  prima  fade  the  fact  of  conspiracy 
between  the  parties  has  first  been  given,  then 
everything  said,  done  or  written  in  execution 
or  furtherance  of  the  common  purpose  by 
any  one  of  those  thus  shown  to  have  partici- 
pated in  such  conspiracy,  is  relevant  in  all 
proceedings  against  any  or  all  of  the  other 
conspirators  as  well  as  against  himself,  be- 
cause it  is  considered  under  these  circum- 
stances to  form  a  part  of  the  same  transac- 
tion in  which  they  were  all  engaged  and 
which  is  the  subject-matter  of  inquiry  in  all 
such  proceedings.  It  must  be  borne  in  mind, 
however,  that  this  only  applies  to  words 
spoken  while  actually  engaged  in  the  execu- 
tion or  furtherance  of  the  objects  of  the  con- 
spiracy. Anything  in  the  way  of  a  narrative 
of  what  had  been  done  or  spoken  while  so  en- 
gaged does  not  come  within  the  category  of 
res  gestae,  and  is  therefore  only  relevant  as 
against  the  narrator  and  such  others  of  the 
conspirators  as  were  present  and  within  hear- 
ing when  he  related  it.'^ 

■^  Ste.  Dig.,  art.  4;   1  Gr.  Ev.,   §111;  Tay.   Ev., 
§  590,  etc. ;  Am.  Fur  Co.  v.  United  States,  2  Pet., 


CHAP.  l]         PROBABLE  CAUSE  16 

§  8.  Facts  showing  probable  cause  for  ex- 
istence or  non-existence  of  fact  in  issue;  Op- 
portunity.—As  experience  has  shown  that  all 
effects  are  the  result  of  some  cause,  and  that 
like  causes  generally  produce  similar  effects, 
all  facts  which,  if  true,  would  afford  a  prob- 
able cause  for  the  existence  or  non-existence 
of  a  fact  in  issue,  or  which  would  show  that 
the  person  alleged  to  have  done  any  act,  the 
doing  of  which  is  a  fact  in  issue,  had  or  had 
not  any  motive  for  or  intention  of  doing  such 
act,  or  did  or  did  not  make  any  preparation 
for  so  doing,  are  generally  considered  rele- 
vant.^ So,  also,  of  any  facts  which  would 
show  that  an  opportunity  existed  for  the  do- 
ing of  any  act  constituting  a  fact  in  issue  or 
relevant  thereto.^ 

358,  365 ;  Lincoln  v.  Claflin,  7  Wall.,  133,  139 ;  Nudd 
V.  Burrows,  91  U.  S.,  426,  438;  Logan  v.  United 
States,  144  U.  S.,  263,  309 ;  Brown  v.  United  States, 
150  U.  S.,  93,  98;  Sparf  &  Hansen  v.  United  States, 
150  U.  S.,  51,  56;  Spies  v.  People,  122  111.,  1;  12  N. 
E.  865;  17  N".  E.,  898;  3  Am.  St.  E.,  320. 

8  Ste.  Dig.,  art.  7 ;  also,  App.,  note  1 ;  R.  v.  Clewes, 
4  C.  &  P.,  221 ;  Carlton  v.  People,  150  111.,  181,  187; 
37  N.  E.  244;  41  Am.  St.  P.,  346,  350;  State  v.  La- 
page,  57  X.  H.,  245 ;  24  Am.  P.,  69 ;  Grand  Trunk 
P.  P.  Co.  V.  Pichardson,  91  U.  S.,  454,  470. 

»  Ste.  Dig,  art.  9;  P.  v.  Donellan,  Wills,  Circ.  Ev., 


16  RELEVANCY  [PART I 

§9.    Ordinary  course  of  business.— Upon 

this  ground  the  existence  of  any  regular 
course  of  business  according  to  which  a  par- 
ticular act  would  naturally  have  been  done  is 
relevant  to  show  that  such  act  was  done; 
thus,  in  order  to  show  that  a  letter  was 
posted,  it  is  relevant  to  prove  that  it  was  put 
into  a  certain  place,  and  that  it  was  the  or- 
dinary course  of  business  for  all  letters  put 
there  to  be  carried  to  the  post.^*^ 

§  10.  Natural  effects  likely  to  have  been 
produced  by  existence  or  non-existence  of  facts 
in  issue;  complaints;  facts  showing  animus; 
similar  occurrences  showing  intention.— So. 
also,  proof  of  any  facts  which  would  be  the 

192 ;  Clark  v.  Fitch,  2  Wend.,  460 ;  20  Am.  Dec,  639 
Dowell  V.  Guthrie,  99  Mo.,  653,  665;  12  S.  W.  900 

17  Am.  St.  E.,  598;  McCoy  v.  Trucks,  121  Ind.,  292 
23  N,  E.,  93.    See  sec.  130  post  as  to  experiments. 

10  Ste.  Dig.,  art.  13;  1  Gr.  Ev.,  §§  38,  40;  Linden- 
berger  v.  Beall,  6  Wlieat.,  104;  Skillbeck  v.  Gorbett, 
7  A.  &  E.,  N.  S.  (7  Q.  B.),  846;  Hall  v.  Brown,  58 
N.  H.,  96 ;  Hedden  v.  Roberts,  104  Mass.,  38 ;  45  Am. 
R.  276;  Rosenthal  v.  Walker,  111  U.  S.,  185,  193; 
Henderson  v.  Carbondale  Coal  Co.,  140  U.  S.,  25,  56; 
Schultz  V.  Jordan,  141  U.  S.,  213.  As  to  telegrams, 
Epping  V.  Scott,  112  Cal.,  369;  42  P.,  301;  44  P., 
723 ;  53  Am.  St.  R.,  226 ;  Perry  v.  German  Am.  Bank, 
53  Neb.,  89;  73  N.  W.,  538;  68  Am.  St.  R.,  593. 


CHAP.  l]         NATURAL  EFFECTS  17 

natural  and  probable  effect  or  result  of  the 
existence  or  non-existence  of  any  fact  in  is- 
sue is  admissible  in  evidence  as  relevant 
thereto.*^  Thus,  where  the  question  is 
whether  a  certain  act  was  done  by  A.,  any 
subsequent  conduct  of  A.,  apparently  influ- 
enced by  the  doing  of  that  act,  or  anything 
done  by  him  or  by  his  authority  in  conse- 
quence of  it,  is  relevant.^'  And  in  criminal 
cases  possession  of  the  fruits  of  crime,^^' 
and  where  an  injury  is  alleged  to  have  been 
done  to  a  person,  his  subsequent  conduct,  and 
in  particular  the  fact  that  he  made  complaint 
soon  after  the  offense  to  persons  to  whom  he 
would  naturally  complain,  are  relevant;  but 
the  terms  of  the  complaint  itself  are  generally 
considered  to  be  irrelevant.^^    So,  also,  where 

^^  See  India  Ev.  Act,  §7;  Aveson  v.  Lord  Kin- 
naird,  6  Ea.,  188 ;  Greenfield  v.  People,  85  N.  Y.,  75 ; 
39  Am.  R.,  636 ;  Brewing  Co.  v.  Bauer,  50  Ohio  St., 
560;  35  N.  E.,  55;  40  Am.  St.  R.,  686;  Hodge  v. 
State,  98  Ala.,  10;  13  So.,  385;  39  Am.  St.  R.,  1. 

12  Ste.  Dig.,  art.  7 ;  Com.  v.  Webster,  5  Cush.,  295 ; 
52  Am.  Dec,  711;  Furnas  v.  Durgin,  119  Mass.,  500, 
508. 

i2»  Wilson  V.  U.  States,  162  U.  S.,  613;  State  v. 
Brady,  121  Iowa,  561 ;  12  L.  N.  S.,  199. 

13  Ste.  Dig.,  art.  8;  Bacio  v.  People,  41  N.  Y.  (2 
Hand),  265;  Oleson  v.  State,  11  Neb.,  276;  38  Am. 


18  RELEVANCY  [PAET  I 

the  fact  in  issue  is  the  existence  in  any  per- 
son, of  any  state  of  mind  such  as  intention, 
knowledge,  good  faith,  negligence,  rashness, 
or  ill  will  or  good  will  towards  any  particular 
person,  any  facts  which  appear  to  be  the  nat- 
ural and  probable  manifestations  of  such  a 
state  of  mind  are  relevant  as  proof  of  its  ex- 
istence at  the  time  when  they  happened.^ ^^ 
Thus,  where  the  question  is  whether  an  act 
done  by  A.  was  committed  with  a  fraudulent 
intent,  his  fraudulent  conduct  to  third  parties 
in  similar  transactions  about  the  same  time  is 
a  relevant  fact  to  show  his  animus ;'^^  and  so, 
also,  where  there  is  a  question  as  to  whether 
an  act  was  accidental  or  intentional.  The  fact 
that  such  an  act  formed  part  of  a  series  of 
similar  occurrences,  in  each  of  which  the  per- 

Rep.,  366;  People  v.  0 'Sullivan,  104  N.  Y.,  481 ;  58 
Am.  E.,  530;  10  N.  E.,  880;  1  Elliott  Ev.,  §  163. 

13- India  Ev.  Act,  §  14;  Ste.  Dig.,  art.  11;  1  Gr. 
Ev.,  §  53;  Tay.  Ev.,  §§  338-345;  Mut.  Life  Ins.  Co. 
v.  Hillmon,  145  U.  S.,  285,  295 ;  Com.  v.  Trefethen, 
157  Mass.,  180;  31  N.  E.,  961. 

14  McAleer  v.  Horsey,  35  Md.,  439,  461 ;  Bottomly 
V.  United  States,  1  Story,  135;  3.  Fed.  Cas.,  968; 
Castle  v.  Bullard,  23  How.,  172;  Lincoln  v.  Claflin, 
7  Wall.,  457,  464 ;  X.  Y.  Mut.  Life  Ins.  Co.  v.  Arm- 
strong, 117  U.  S.,  591. 


CHAP.  l]  EXPLANATORY   FACTS  19 

son  doing  the  act  was  concerned,  is  a  relevant 
fact  to  show  intention  on  his  part.^' 
§  11.    Facts  explanatory  of  relevant  facts. 

— Another  ground  of  the  relevancy  of  facts 
not  directly  in  issue  is  their  being  necessary 
to  be  known  in  order  to  explain  or  introduce 
facts  in  issue  or  relevant  facts,  or  to  support 
or  rebut  an  inference  suggested  by  a  fact  in 
issue  or  relevant  fact,  or  to  establish  the 
identity  of  any  thing  or  person  whose  identity 
is  relevant,  or  to  fix  the  time  or  place  at  which, 
any  fact  in  issue  or  relevant  fact  happened, 
or  to  show  the  relation  of  parties  by  whom 
any  such  fact  was  transacted;  and  accord- 
ingly such  facts  are  admissible  in  evidence  in 
so  far  as  they  are  necessary  for  these  pur- 
poses.^ ^  This  class  of  evidence  is  admitted 
for  the  same  general  reasons  which  apply  to 

15  Ste.  Dig.,  art.  12;  Dunn's  Case,  1  Moo.  C.  C, 
146;  R.  V.  Cooper,  L.  E.  1  Q.  B.  D.  (C.  C.  R.),  19: 
Bottomly  v.  United  States,  1  Story,  135 ;  3  Fed.  Cas,, 
963,  971;  Wood  v.  United  States,  16  Peters,  342, 
360;  N.  Y.  Mut.  Life  Ins.  Co.  v.  Armstrong,  117 
U.  S.,  591;  Com.  v.  Eastman,  1  Cush.,  189;  48  Am. 
D.,  596. 

16  India  Ev.  Act,  §  9 ;  Ste.  Dig.,  art.  9 ;  R.  v.  Lord 
Geo.  Gordon,  21  St.  Tr.,  520;  Bank  v.  Kennedy,  17 
Wall.,  19,  24;  People  v.  Yernon,  35  Cal.,  49;  95  Am. 
D.,  1,  note;  1  Elliott  Ev.,  §  155. 


20  RELEVANCY  [PART  I 

the  res  gestae,  but  it  includes  a  great  variety 
of  facts  which,  on  account  of  difference  in 
time  and  place,  and  for  other  reasons,  could 
not  be  classed  as  parts  of  the  same  transac- 
tion as  the  facts  in  issue  to  which  they  relate, 
although  equally  necessary  to  explain  and 
render  them  intelligible,  and  which  it  would 
often  occasion  a  great  failure  of  justice  to 
exclude  from  consideration  in  the  determina- 
tion of  such  facts  in  issue.^^ 

^"^  When  the  question  in  issue  is  whether  a  certain 
effect  was  produced  by  a  specific  cause,  the  rule  is  now 
established  that  evidence  is  admissible  of  the  result 
of  tests  or  experiments  based  upon  conditions  essen- 
tially similar  to  those  existing  in  the  case  on  trial. 
Burg  V.  Chicago,  etc.  Ey.  Co.,  90  Iowa,  106,  117; 
57  N.  W.  680 ;  48  Am.  St.  R.,  419,  427.  But  it  must 
first  be  shown  that  the  conditions  of  the  experiment 
were  practically  identical  with  those  of  the  case  in 
controversy.  See  Chicago,  etc.  R.  R.  Co.  v.  Champion, 
9  Ind.  App.,  510,  514;  36  N.  E.,  231;  37  N.  E.,  21; 
53  Am.  St.  Rep.,  357,  361,  and  extended  note  on  p. 
375.  Permitting  experiments  or  tests  to  be  made 
before  the  jury  whether  in  or  out  of  the  court-room 
rests  largely  in  the  discretion  of  the  trial  courts. 
United  States  v.  Ball,  163  U.  S.,  662,  673;  Com.  v. 
Brelsford,  161  Mass.,  61 ;  36  N.  E.,  677 ;  Hatfield  v. 
St.  Paul,  etc.  Ry.  Co.,  33  Minn.,  130;  22  N.  W.,  176; 
53  Am.  R.,  14.     See,  also,  sec.  130  post. 


CHAPTER  11. 

RULES  OF  EXCLUSION. 

§  12.  Res  Inter  Alios;  facts  not  directly  in 
issue,  nor  relevant  thereto  as  above  stated,  are 
inadmissible.— All  facts  not  in  issue  them- 
selves, and  not  connected  with  some  fact  in 
issue,  or  relevant  thereto  in  some  one  of  the 
above  four  ways,  namely,  either  as  forming 
part  of  the  same  transaction  or  subject  mat- 
ter; or  as  constituting  a  probable  cause  for 
it ;  or  as  the  natural  effect  of  it ;  or  as  neces- 
sary to  explain  or  introduce  it,  are  inadmis- 
sible in  evidence  for  the  purpose  of  forming 
the  ground  of  an  inference  that  such  fact  in 
issue  or  relevant  fact  probably  did  or  did  not 
exist,^  and  are  frequently  designated,  some- 
what loosely,  by  the  term,  res  inter  alios,  a 
phrase  originally  derived  from  the  maxim 
res  inter  alios  acta  alteri  nocere  non  debet, 
but  which  is  often  used  by  the  bench  and  bar 

1  Ste.  Dig.,  art.  10  and  note  VI ;  Holcome  v.  Hew- 
son,  2  Camp.,  391;  State  v.  Lapage,  57  N.  H.,  245; 
24  Am.  E.,  69;   Gehagan  v.   Boston,  etc.,  E.  E.,  1 
Allen,  187 ;  79  Am.  D.,  7324. 
21 


22  RELEVANCY  [PART  I 

in  the  sense  of  irrelevant.^  This  principle, 
that  courts  are  not  at  liberty  to  infer  from 
one  fact  the  probable  existence  or  non-ex- 
istence of  another  fact  merely  because  the 
two  are  similar,  unless  they  can  be  first  shown 
to  be  part  of  the  same  transaction,  or  to  be 
connected  together  in  some  way  by  the  chain 
of  cause  and  effect,  is  one  of  the  most  distin- 
guishing characteristics  of  the  English  law 
of  evidence.  It  stands  in  marked  contrast 
with  the  practice  which  prevails  among  some 
of  the  continental  nations  of  Europe,  where 
in  criminal  cases  it  is  customary  for  the  pros- 
ecution to  collect  and  set  out  before  the 
tribunal  before  which  the  case  is  tried,  a 
detailed  history  of  the  entire  previous  life  of 
the  accused,  in  order  that  it  may  judge  there- 
from of  the  probability  of  his  having  been 
guilty  of  the  offense  with  which  he  is  charged. 
§  13.  Not  all  facts  connected  with  another 
by  way  of  cause  and  effect  necessarily  relevant 
thereto.— Although  the  relevancy  of  any  given 
fact  to  prove  the  existence  or  non-existence 
of  any  other  fact  must  be  determined  mainly 
by  the  rules  of  logic  it  must  not  be  supposed 
that  every  fact  which  may  be  logically 
connected  with  another,  either  in  the  way  of 

2  Tay.  Ev.,  §  317. 


CHAP.  Il]  CHARACTER  23 

cause  or  effect,  is  therefore  necessarily  ad- 
missible in  evidence  as  relevant  to  prove  or 
disprove  it.  To  render  it  admissible  for  that 
purpose  it  must  appear  as  a  probable  cause 
or  effect,  and  the  degree  of  probability  which 
will  entitle  it  to  the  consideration  of  a  ju- 
dicial tribunal  is  a  question  to  be  decided  by 
the  discretion  of  the  judge  in  view  of  all  the 
circumstances  of  the  particular  case  on 
trial.3 

§  14.  Character,  hearsay  and  opinion  gen- 
erally irrelevant.— There  are  also  three  kinds 
of  facts,  namely,  character,  hearsay,  and 
opinions,  which  the  law  expressly  declares  to 
be  irrelevant,  except  in  certain  specified 
cases,  as  the  grounds  for  inferring  the  ex- 
istence or  non-existence  of  other  facts; 
although  in  the  common  occurrences  of 
life  we  often  consider  a  man's  character 
as  furnishing  sufficient  cause  for  an  in- 
ference that  he  did  or  did  not  do  a  cer- 
tain thing  which  is  imputed  to  him,  and 
we  frequently  think  that  the  facts  of  a  truth- 
ful person  having  said  a  thing,  and  of  a  cau- 
tious person  having  believed  it,  are  effects 
which  could  scarcely  have  been  produced  by 

3  Sec.  5,  ante ;  Alexander  v.  United  States,  138  U. 
S.,  353,  356;  1  Wiorm.  Ev.,  §§10,  38a. 


24  RELEVANCY  [PAET I 

any  other  cause  than  the  actual  happening  of 
the  thing  so  said  or  believed  to  have  hap- 
pened. 

§  15.  Character  irrelevant  excepting  in 
favor  of  a  person  indicted  criminally,  or  where 
directly  in  issue.— The  rule  of  law  as  to  the 
relevancy  of  character  is  that  the  fact  of  a 
person  having  a  good  or  bad  character  (in  the 
sense  of  reputation)  is  not  admissible  in  evi- 
dence as  the  ground  for  an  inference  that  he 
did  or  did  not  do  a  certain  thing,  excepting 
that  in  criminal  cases  the  accused  may  show 
that  he  has  a  good  character  as  a  fact  from 
which  the  jury  may  infer  that  he  is  not  guilty 
of  the  crime  or  misdemeanor  for  which  he  is 
indicted.  Of  course  when  this  fact  of  char- 
acter is  put  in  evidence  by  the  accused  it  may 
be  contradicted  like  any  other  fact,  and  the 
prosecution  may  show  that  he  had  not  a  good 
character  by  proof  that  he  had  a  bad  one.'* 
The  reason  for  this  rule  and  its  exception 
may  probably  be  explained,  partly,  by  the 

4  Ste.  Dig.,  art.  55;  1  Tay.  Ev.,  §§  347-361;  Atty. 
Genl.  V.  Bowman,  2  Bos.  &  PuL,  532;  State  v.  La- 
page,  57  N.  H.,  245;  24  Am.  R.,  69;  Fowler  v.  ^tna 
Life  Ins.  Co.,  6  Cowen,  673,  675;  16  Am.  D.,  460; 
Simpson  v.  Westenberger,  28  Kan.,  756;  42  Am.  R., 
195;  Porter  v.  Seller,  23  Pa.  St.,  424;  62  Am.  D., 
341;  1  Elliott  Ev.,  §  167-171. 


CHAP.  Il]  CHARACTER  26 

fact  that  while  in  our  daily  experience  it  is 
no  unusual  thing  to  find  men  occasionally  act- 
ing in  a  manner  very  inconsistent  with  their 
general  character,  it  is  extremely  rare  to 
find  that  a  person  who  has  always  maintained 
a  good  reputation  in  the  community  will  be 
willing  to  forfeit  at  once  all  claims  to  future 
respectability  by  the  commission  of  an  of- 
fense that  would  subject  him,  if  discovered, 
to  the  danger  and  disgrace  of  a  criminal  pros- 
ecution ;  and  partly  by  that  solicitude  of  the 
common  law  to  give  the  accused,  in  criminal 
cases,  the  benefit  of  every  reasonable  doubt, 
which  most  likely  had  its  origin  in  that  period 
of  English  history  when  almost  every  felony 
was  punished  with  death,  and  the  counsel 
for  the  accused  was  not  permitted  to  argue 
in  his  defense  before  the  jury.  Whenever 
the  question  as  to  whether  a  person  has  a 
good  or  bad  character  is  itself  a  fact  in  is- 
sue,^ as  in  the  case  of  an  action  for  defamation 
where  the  defendant  justifies,  or  where  it  be- 
comes relevant  in  order  to  determine  the 
amount     of    damages    which    the     plaintiff 

5  1  Gr.  Ev.,  §  54;  Tay.  Ev.,  §  355;  Ruan  v.  Perry, 
3  Caines,  120;  0 'Bryan  v.  0 'Bryan,  13  Mo,  16;  53 
Am.  D.,  128 ;  Cleghom  v.  N.  Y.  &  H.  R.  R.  R.,  56 
N".  Y.,  44;  15  Am.  R.,  375;  1  Elliott  Ev.,  §  169. 


26  RELEVANCY  [PART  I 

should  recover,*'  such  person's  character  may 
always  be  proved  in  evidence  like  any  other 
fact  in  issue  or  relevant  fact. 

§  16.  Hearsay  excluded  except  in  certain 
cases.— One  of  the  most  important  of  the  rules 
of  evidence  in  regard  to  relevancy  is  that 
which  is  frequently  summarized  by  the 
maxim  ** Hearsay  is  no  evidence,"  but  which 
may  be  more  accurately  given  thus :  The  fact 
that  a  statement  has  been  made  by  a  person 
not  called  as  a  witness,  or  is  contained  in 
any  book,  document  or  record  whatever, 
proof  of  which  is  not  admissible  on  other 
grounds,  is  not  relevant  as  a  fact  from  which 
the  truth  of  the  fact  stated  may  be  inferred, 
except  in  certain  cases  hereinafter  men- 
tioned.'^ This  rule  is  not  applicable,  as  al- 
ready intimated,  to  the  case  of  words  or  ex- 
clamations accompanying  an  act  which  are 
received  in  evidence  as  part  of  the  res  gestae, 
or  to  such  as  are  offered  merely  as  indicative 
of  the  actual  state  of  mind  or  feeling  of  the 

6  Stone  V.  Varney,  7  Mete,  86 ;  39  Am.  D.,  763 ; 
Gore  V.  Curtis,  81  Me.,  403;  17  A.  314;  10  Am.  St. 
R.,  265;  Miller  v.  Curtis,  158  Mass.,  157;  33  N.  E., 
1039 ;  35  Am.  St.  R.,  469 ;  Pease  v.  Shippen,  86  Pa. 
St.,  305;  31  Am.  R.,  116. 

■^  Ste.  Dig.,  art.  14;  Mima  Queen  v.  Hepburn,  7 
Cr.,  290,  295;  Hopt  v.  Utah,  110  U.  S.,  574,  581. 


CHAP.  Il]  HEARSAY  27 

person  using  them  at  the  time  when  they 
were  uttered,  but  refers  solely  to  narratives 
of  past  occurrences. 

§  17.  Reasons  for  the  rule  excluding  hear- 
say.—The  reasons  for  the  rule  excluding  hear- 
say, or,  as  Mr.  Best  more  accurately  terms 
it,  ''derivative  evidence,"*  are  not  difficult 
to  discover,  for  apart  from  the  circumstance 
that  the  probabilities  of  falsehood  and  mis- 
representation, either  wilful  or  uninten- 
tional, being  introduced  into  a  statement  are 
greatly  multiplied  every  time  it  is  repeated, 
there  remains  the  further  fact  that  the  origi- 
nal statement,  even  if  correctly  reported, 
has  scarely  ever  been  made  under  the  safe- 
guards of  the  personal  responsibility  of  the 
author  as  to  its  truth,  or  the  tests  of  a  cross- 
examination  as  to  its  accuracy.  It  is  indeed 
true,  that,  in  the  ordinary  affairs  of  life,  men 
often  act  upon  information  received  at  second 
hand,  but  this  is  seldom  done  in  matters  of 
much  importance,  unless  either  they  or  their 
informants  possess  sufficient  personal  knowl- 
edge of  the  party  from  whom  the  statement 
originated  to  form  an  intelligent  estimate  of 
his  general  disposition  to  speak  the  truth,  the 
temptation  he  may  be  under  to  deceive,  and 

8  Best  on  Ev.,  §§  29,  30,  51,  493-5. 


28  RELEVANCY  [PART  I 

his  probable  means  of  accurate  information 
in  regard  to  the  subject-matter  of  his  state- 
ment. Such  personal  knowledge  the  courts 
can  rarely  possess,  and  therefore  three  tests 
have  been  provided,  to  which,  in  general,  all 
statements  must  be  subjected  before  be- 
ing admitted  as  evidence  in  judicial  pro- 
ceedings. These  are:  1.  That  the  state- 
ment must  be  made  under  the  moral  obliga- 
tion of  a  solemn  oath  or  affirmation,  with  the 
liability  to  a  criminal  prosecution  for  perjury 
in  case  of  falsehood.  2.  That  the  party 
against  whom  the  testimony  is  given  shall 
have  the  opportunity  of  cross-examining  the 
witness,  in  order  to  elicit  his  sources  of  in- 
formation as  well  as  any  material  facts  within 
his  knowledge  which  he  may  not  be  disposed 
to  disclose  voluntarily,  and  also  to  test  the 
general  accuracy  of  his  statements,  and  to 
show  if  he  has  any  bias  in  regard  to  the  mat- 
ter in  dispute.  3.  That  the  witness  should 
give  his  testimony  in  open  court,  in  order  that 
the  jury  may  observe  his  demeanor  while  giv- 
ing it. 

§  18.  Two  classes  of  exceptions  to  the  rule. 
— The  exceptions  to  the  rule  excluding  hear- 
say or  derivative  evidence  may  be  divided 
into  two  classes.  The  first  class  (A)  includes 
statements  made  under  circumstances  which 


CHAP.  Il]  ADMISSIONS  29 

render  the  three  tests  above  mentioned  super- 
fluous, namely: 

1.  Admissions. 

2.  Statements  in  public  documents. 

3.  Statements  in  judicial  records. 

4.  Statements  showing  the  existence  of  a 
general  reputation  in  cases  where  the  ex- 
istence of  such  reputation  is  a  relevant  fact. 

The  second  class  (B)  includes  statements 
to  which  some  one  or  more  of  the  three  tests 
cannot  be  applied  by  reason  of  the  death  or 
inability  to  testify  of  the  person  who  made 
them,  but  which  were  made  under  certain 
conditions  affording  sufficient  proof  of  their 
truth  to  justify  their  reception  as  evidence 
without  being  subjected  to  such  tests.  Such 
statements  are  generally  called  declarations, 
and  the  person  who  made  them  a  declarant. 
They  are  as  follows 

1.  Evidence  given  in  a  proceeding  between 
the  same  parties  or  their  privies. 

2.  Dying  declarations  as  to  cause  of  death. 

3.  Declarations  made  in  the  course  of  busi- 
ness or  professional  duty. 

4.  Declarations  against  the  interest  of  the 
declarant. 

5.  Declarations  of  testator  as  to  contents 
of  his  will. 

6.  Declarations  as  to  public  or  general 
rights. 


30  RELEVANCY  [PART I 

7.  Declarations  as  to  matters  of  pedigree. 

In  the  United  States,  insanity,  and,  in  some 
cases,  even  permanent  absence  from  the 
state,  have  been  held  to  have  the  same  effect 
as  death  in  rendering  the  declarations  of  such 
insane  or  absent  person  admissible;  but  the 
decisions  of  the  courts  of  diif  erent  states  con- 
flict as  to  the  admissibility  of  declarations 
made  by  persons  absent  from  the  state. 

These  several  exceptions  to  the  rule  exclud- 
ing hearsay  will  now  be  considered  seriatim 
in  the  order  above  given. 

§19.  (A.)  First  class  of  exceptions;  ad- 
missions.—An  admission  ^  is  a  statement,  oral, 
written,  or  by  tacit  acquiescence,^"  suggesting 
any  inference  as  to  any  fact  in  issue  or  rele- 
vant thereto,  made  by  or  on  behalf  of  any 
party  to  any  proceeding,  and  is  (subject  to  the 
rules  hereinafter  stated)  relevant  as  against 
the  person  by  or  on  whose  behalf  it  was  made, 
but  not  in  his  favor  unless  admissible  in  evi- 
dence for  some  other  reason,  but  in  divorce 
suits  and  other  proceedings  for  judgments  in 

9  Ste.  Dig.,  art.  15;  1  Elliott  Ev.,  §§  220-242. 

10  Gr.  Ev.,  §  197;  Tay.  Ev.,  §  809;  2  Whar.  Ev., 
§  1136;  Wiggins  v.  Burnham,  10  Wall.,  129;  Turner 
V.  Yates,  16  How.,  14,  27;  Allison  v.  Barrow,  3  Cold., 
414;  91  Am.  D.,  291. 


CHAP.  Il]  ADMISSIONS  31 

rem  such  admissions  are  not  conclusive,  as 
other  parties  have  interests  in  the  case  which 
cannot  be  concluded  by  the  party  making 
them.  (See  sections  36,  37,  57  post).  That 
such  admissions,  when  offered  in  evidence 
against  the  party  by  whom  they  have  been 
made,  should  be  received  as  against  such 
party  without  being  first  subjected  to  the 
three  tests  above  mentioned,  is  almost  self- 
evident.^^  For  these  tests,  being  designed 
merely  as  safeguards  to  protect  the  parties 
to  the  suit  from  the  introduction  of  false 
testimony,  cannot  fairly  be  invoked  by  the 
party  who  made  the  admission  for  the  pur- 
pose of  proving  his  own  falsehood,  and  the 
other  party  by  offering  the  admission  ex- 
pressly waives  all  claim  on  his  part  to  have 
the  three  tests,  or  any  of  them,  applied  to  it. 
The  fact  that  such  admissions  are  against  the 
interest  of  the  party  who  made  them,  always 
raises  a  very  strong  presumption  that  they 
are  true,  and  notwithstanding  that  it  some- 
times happens  that  a  party  makes  a  false 
statement,  which  he  believes  at  the  time  to  be 
for  his  own  advantage,  although  it  afterwards 

11  In  proceedings  for  divorce  sucn  admissions  are 
not  conclusive,  as  the  public  has  an  interest  in  the 
case  to  prevent  collusion. 


82  RELEVANCY  [PART 1 

turns  out  to  the  contrary,  yet  even  under 
such  circumstances  it  is  no  more  than  right 
that  the  fact  of  his  having  made  such  a  state- 
ment should  be  given  in  evidence,  if  for  no 
other  purpose,  at  least  to  throw  upon  him  the 
burden  of  explaining  it,  and  thereby  showing 
his  disposition  to  depart  from  the  truth  when 
he  considers  that  his  interests  will  be  sub- 
served by  such  a  course. 

§  20.  How  admissions  may  be  made. — Such 
admissions,  as  already  stated,  may  be  made 
not  only  by  the  oral  or  written  statements  of 
the  party  himself  but  by  his  tacit  acquiescence 
in  the  statements  of  others  made  in  his  pres- 
ence and  hearing ;  and  it  is  upon  this  ground 
that  whatever  is  said  by  anyone  whomsoever 
in  regard  to  the  matter  in  controversy,  in  the 
presence  and  hearing  of  a  party  to  the  suit, 
is  in  general  admissible  in  evidence  to  show 
his  acquiescence  therein,  if  offered  by  his  ad- 
versary. In  order,  however,  for  his  silence 
in  such  cases  to  warrant  the  inference  of  ac- 
quiescence on  his  part,  it  must  not  only  ap- 
pear that  the  language  used  was  fully  under- 
stood by  him,  but  also  that  the  circumstances 
were  such  as  afforded  him  an  opportunity  to 
speak,  and  such  as  would  properly  and  natur- 
ally call  for  some  reply  from  a  person  sim- 


CHAP.  Il]  ADMISSIONS  88 

ilarly  situated.^  ^  Conversations  by  tele- 
phone, when  the  parties  can  recognize  each 
other's  voices,  are  admissible  m  evidence  to 
the  same  extent  as  other  conversations.^^ 

§  21.  The  whole  of  a  statement  made  at  the 
time  must  be  cansidered.— ^^/hen  the  state- 
ment of  a  party  is  offered  in  evidence  as  an 
admission,  fairness  requires  that  everything 
he  said  at  the  time  relating  to  the  same  sub- 
ject-matter should  be  received  and  consid- 

12  Gr.  Ev.,  §  197 ;  Tay.  Ev.,  §  809 ;  2  Whar.  Ev., 
§  1138;  Corser  v.  Paul,  41  N.  H.,  24;  77  Am.  D., 
753;  Brainard  v.  Buch,  25  Vt,  573;  60  Am.  D.,  291. 

13  Murphy  v.  Jack,  142  N.  Y.,  215 ;  40  Am.  St.  R., 
590.  Conversations  held  through  telephone  at  a  per- 
son's office  admitted  although  voice  not  recognized. 
Mo.  Pacific  Ry.  v.  Heidenheimer,  82  Tex.,  195;  17 
S.  W.,  608;  27  Am.  St.  R.,  861 ;  Knickerbocker  Co.  v. 
Gardiner  Co.,  107  Md.,  556,  571 ;  69  A.  405.  Also 
conversation  over  telephone  through  operators  in 
the  presence  of  persons  whose  words  they  repeated. 
Sullivan  v.  Kuykendall,  82  Ky.,  483;  56  Am.  R., 
901;  Oscamp  v.  Gadsden,  35  Neb.,  7;  52  N.  W., 
718 ;  37  Am.  St.  R.,  428 ;  but  see  Willner  v.  Silver- 
man, 109  Md.,  341,  360 ;  71  A.  962.  Also  Bennett 
V.  Magner,  105  Minn.,  118;  117  N.  W.,  245;  127 
Am.  St.  R.,  531,  with  full  note  pp.  538-557.  Ac- 
knowledgment of  deed  through  telephone  by  mar- 
ried woman  held  good.  Banning  v.  Banning,  80 
Cal.,  271;  22  P.,  210;  13  Am.  St.  R.,  156. 


34  RELEVANCY  [PART 1 

ered  together  with  it,  in  order  to  understand 
his  true  meaning,  yet  it  does  not  follow  that 
the  whole  statement  is  equally  worthy  of 
credit;  and  it  is  therefore  for  the  jury  to 
consider,  after  hearing  it  all,  how  much  they 
are,  under  the  circumstances,  warranted  in 
accepting  as  true.^^ 

§22.  Party  bound  by  the  admissions  of — 
(a)  his  privies;  (b)  those  whose  interests  he 
represents;  (c)  those  jointly  interested  with 
him;  (d)  those  whom  he  has  authorized  to 
make  admissions,  or  to  whom  he  has  referred 
a  party  for  information.— The  same  reason- 
ing which  renders  a  party's  own  admissions 
receivable  in  evidence  against  him  applies 
equally  to  those  made  on  his  behalf  by  others, 
for  whose  acts,  done  at  the  time  such  admis- 
sions were  made  and  relating  to  the  same  sub- 
ject-matter, he  would  be  held  responsible. 
Such  persons  are: 

(a)  Those  under  whom  the  party  claims, 
as  privies  in  blood,  privies  in  law,  or  privies 
in  estate,  as  the  case  may  be.^^    Thus,  the  ad- 

14  1  Gr.  Ev.,  §  201 ;  Tay.  Ev.,  §  725 ;  Queen  Caro- 
line's Case,  2  Brod.  &  B.,  297 ;  Prince  v.  Samo,  7  Ad. 
&  E.,  627;  Insurance  Co.  v.  Newton,  22  Wall.,  32; 
Eouse  V.  ^Vliited,  25  N.  Y.,  170 ;  82  Am.  D.,  337. 

15  1  Gr.  Ev.,  §§  189,  190;  Tay.  Ev.,  §§  787,  788— 
privies  in  law;  Eckert  v.  Triplett,  48  Ind.,  174;  17 


CHAP.  Il]  ADMISSIONS  35 

missions  of  an  ancestor  in  regard  to  tlie  title 
of  lands  owned  by  him,  are  received  in  evi- 
dence against  his  heir  in  an  action  concerning 
the  same  property;  those  of  a  vendor,  made 
while  the  owner  of  the  thing  sold,  are  ad- 
missible against  his  vendee ;  those  of  a  land- 
lord, against  his  tenant,  and  those  of  a  testa- 
tor or  intestate,  against  his  executors  or  ad- 
ministrators. 

(b)  Those  whose  interest  the  party  repre- 
sents, as  a  principal  for  whose  benefit  the 
action  has  been  brought  by  an  agent,  the 
cestui  que  trust  of  a  trustee,  or  one  to  whose 
use  a  suit  has  been  entered,  or  who  is  in  fact 
the  real  plaintiff  or  defendant,  although  his 
name  does  not  appear  on  the  record.  In  this 
class  of  cases  the  admissions  are  only  receiv- 
able in  evidence  when  their  effect  would  be 
confined  to  the  interest  of  the  party  who 
actually  made  them  and  those  who  claim 
through  him.^^  Thus  in  a  case  where  an  ac- 
tion was  brought  by  trustees  representing  the 

Am.  E.,  735 — privies  in  blood;  Spalding  v.  Hallen- 
beck,  35  JST.  Y.,  304 — privies  in  estate ;  Pool  v.  Morris, 
29  Ga.,  374;  74  Am.  D.,  68;  1  Ell.  Ev.,  §§  243-270. 
18  1  Gr.  Ev.,  §  180;  Tay.  Ev.,  §§  756,  757;  Bridges 
V.  Eggleston,  14  Mass.,  245,  250-57;  7  Am.  D.,  209; 
Babb  v.  Clem&on,  10  S.  &  R.,  419;  13  Am.  D.,  684. 


36  EELEVANCY  [PART I 

interests  of  several  cestuis  que  trust,  the 
statements  of  the  person  beneficially  inter- 
ested as  tenant  for  life  were  not  received  as 
evidence  for  the  defendant  so  as  to  prejudice 
the  rights  of  the  remainderman  in  fee.^^  And 
so,  also,  an  admission  made  by  a  party  to  the 
suit  who  sues  in  a  representative  character 
merely,  must,  in  order  to  be  received  in  evi- 
dence, be  made  while  he  is  clothed  with  that 
character.^® 

(c)  Those  who  are  jointly  interested  with 
a  party  to  the  suit,  as  his  partners  or  joint 
contractors  with  him.  But  it  by  no  means 
follows  that,  because  two  persons  have  a  com- 
mon interest  in  the  same  subject-matter,  they 
can  therefore  make  admissions  respecting  it 
against  each  other.  To  enable  them  to  do 
this,  not  only  must  their  interest  be  joint,  but 
the  admissions  must  be  made  during  the  con- 
tinuance of  the  joint  interest.^ ^  Thus,  accord- 

17  Tay.  Ev.,  §  757;  Doe  v.  Wainwright,  8  A.  &*E., 
691,  699,  700. 

18  Tay.  Ev.,  §  755;  Ste.  Dig.,  art.  16;  Mason  v. 
Poulson,  Adm'r,  40  Md.,  355,  365;  1  Ell.  Ev.,  §  361. 

i»  Ste.  Dig.,  art.  17;  1  Gr.  Ev.,  §§  174,  176;  Tay. 
Ev.,  §  750;  Mandeville  v.  Welch,  5  Wheat.,  277,  283; 
Padgett  V.  Lawrence,  10  Paige,  170,  180;  4  Am.  D., 
232 ;  1  Elliott  Ev.,  §  246. 


CHAP,  ll]  ADMISSIONS  87 

ing  to  the  weight  of  American  authority ,^'^ 
admissions  made  by  a  partner  after  the  dis- 
solution of  the  partnership,  relating  to  mat- 
ters done  during  its  existence,  are  inadmis- 
sible against  the  other  partner ;  and  so,  also, 
in  cases  in  which  actions  founded  on  a  con- 
tract have  been  barred  by  the  statute  of  lim- 
itations, no  joint  contractor  or  his  personal 
representative  loses  the  benefit  of  such  stat- 
ute by  reason  only  of  any  acknowledgment 
or  promise,  or  payment  of  any  principal,  in- 
terest or  other  money,  by  any  other  or  others 
of  them,  made  after  the  period  of  limitation 
has  expired.^^ 

(d)  Those  whom  the  party  has  either  ex- 
pressly or  by  his  conduct  authorized  to  make 
admissions  on  his  behalf.  This  class  includes 
counsel  and  attorneys  of  record  while  en- 
gaged in  the  actual  management  of  the  cause, 
either  in  court  ^^  or  in  correspondence  relat- 
ing thereto,  and  agents  of  every  kind;  but 
unless  the  latter  have  been  expressly  author- 

^oWhar.  Ev.,  §  1196,  and  note;  Baker  v.  Stack- 
poole,  9  Cow.,  420,  423 ;  18  Am.  D.,  508. 

21  Ellicott  V.  Nichols,  7  Gill,  85,  96 ;  Bell  v.  Morri- 
son, 1  Pet.,  351,  367. 

22  Oscanyan  v.  Arms  Co.,  103  U.  S.,  261 ;  Pratt  v. 
Conway,  148  Mo.,  291,  299 ;  40  S.  W.,  1028 ;  71  Am. 
St.  R.,  602,  607. 


38  RELEVANCY  [PART I 

ized  to  make  them,  their  admissions  are  only 
receivable  in  evidence  when  shown  to  have 
been  made  in  reference  to  business  about 
which  they  were  employed  at  the  time,  and 
which  was  within  the  scope  of  their  author- 
ity.^^ This  class  also  includes  persons  to 
whom  a  party  to  the  proceedings  has  ex- 
pressly referred  another  for  information  con- 
cerning a  matter  in  dispute,  whose  state- 
ments are  received  as  admissions  of  the  party 
who  so  referred  to  them,  since  by  such  refer- 
ence the  party  has,  in  effect,  adopted  their 
statements  as  his  own.^^  But  the  admissions 
of  a  principal  are  not  receivable  in  evidence 
against  his  surety,  as  to  matters  for  which 
the  latter  has  given  security,  unless  made 
during  the  transaction  of  the  business  for 
which  the  surety  is  bound,  so  as  to  become 
part  of  the  res  gestae?^    Thus,  if  one  becomes 

23  Ste.  Dig.,  art.  17;  Cliquot's  Champagne,  3  Wall., 
114,  140;  United  States  v.  Brig  Burdett,  9  Pet.,  682, 
687;  Vicksburg  &  Meridian  E.  R.  Co.  v.  O'Brien,  119 
U.  S.,  99,  104;  Stiles  v.  W.  R.  R.  Co.,  8  Mete,  44;  41 
Am.  D.,  486.    See,  also,  91  Am.  D.,  note  p.  493. 

24  1  Gr.  Ev.,  §  182;  Tay.  Ev.,  §  760;  Allen  v.  Kil- 
linger,  8  Wall.,  480 ;  Turner  v.  Yates,  16  How.,  14,  28 ; 
Chapman  v.  Twitchell,  37  Me.,  59 ;  58  Am.  D.,  773. 

25  1  Gr.  Ev.,  §  187 ;  Tay.  Ev.,  §  785 ;  Ste.  Dig.,  art. 
17;  Chelmsford  Co.  v.  Demarest,  7  Gray,  1;  Stetson 


CHAP,  II]  ADMISSIONS  39 

surety  on  a  bond  conditioned  for  the  faithful 
performance  of  another  as  clerk  or  collector, 
and  the  latter,  after  being  dismissed,  makes 
statements  as  to  sums  of  money  which  he  has 
received  and  not  accounted  for,  these  state- 
ments are  not  relevant  as  admissions  against 
the  surety,  although  with  regard  to  entries 
made  by  such  clerk  in  the  course  of  his  duty, 
and  before  his  dismissal,  it  is  otherwise.^^ 

§23.  Offer  of  compromise  not  an  admis- 
sion.—No  offer  made  by  either  party  by  way 
of  compromise,  or  to  buy  peace,  can  be  given 
in  evidence  in  any  civil  action  as  an  admission 
by  him,  if  it  was  made  either  upon  the  express 
condition  that  evidence  of  it  should  not  be 
given,  or  under  circumstances  from  which  the 
judge  infers  that  such  was  the  understand- 
ing  between   the    parties.-"       This    rule   is 

V.  City  Bank,  2  Ohio  St.,  167,  175;  Blair  v.  Perpet. 
Ins.  Co.,  10  Mo.,  559 ;  47  Am.  D.,  129. 

-^  Ibid.  But  a  judgment  recovered  in  an  action 
against  the  principal  is  admissible,  and  in  some  cases 
conclusive  evidence  of  the  amount  for  which  his  surety 
is  liable  in  an  action  against  the  latter.  Drummond 
V.  Prestman,  12  Wheat.,  519;  Stovall  v.  Banks,  10 
Wall.,  583 ;  2  AVhar.  Ev.,  §  770. 

27  Ste.  Dig.,  art.  20 ;  1  Phil.  Ev.,  4th  Am.  ed.,  p. 
147,  note;  1  Gr.  Ev.,  §  192;  Home  Ins.  Co.  v.  Bait. 


40  RELEVANCY  [PART I 

grounded  upon  public  policy  and  convenience, 
for  without  it  parties  would  never  be  safe  m 
taking  any  steps  towards  an  amicable  adjust- 
ment of  their  differences;  but  it  is  confined 
solely  to  offers  of  compromise  as  such,  and, 
therefore,  when,  during  a  treaty  of  compro- 
mise, either  party  admits  any  independent 
fact  merely  because  he  recognizes  it  to  be  true, 
such  admission  may  be  afterwards  received 
in  evidence  against  him.^^ 

§24.  Admissions  made  under  duress  ex- 
cluded.—Admissions  made  under  duress  or 
circumstances  of  constraint  are  not  admis- 
sible in  evidence,  but  there  is  a  distinction 
taken  between  civil  and  criminal  cases  as  to 
what  constitutes  duress.  In  the  former  no 
amount  of  legal  compulsion  is  held  to  be  such 
duress  as  will  exclude  admissions  made  by  a 
party  to  the  proceeding;-^   but  no  confes- 

Warehouse  Co.,  93  U.  S.,  527,  548 ;  Paddock  v.  For- 
rester, 3  M.  &  G.,  903 ;  1  ElHott  Ev.,  §  240. 

28  1  Gr.  Ev.,  §  192 ;  Hartford  Bridge  Co.  v.  Granger, 
4  Conn.,  142,  148 ;  Gerrish  v.  Sweetser,  4  Pick.,  374, 
377 ;  Eastman  v.  Amoskeag  Mfg.  Co.,  44  N.  H.,  143 ; 
82  Am.  D.,  281;  Brice  v.  Bauer,  108  N.  Y.,  428;  15 
N.  E.  695;  2  Am.  St.  R.,  454. 

2»  1  Gr.  Ev.,  §  193;  Collet  v.  Keith,  4  Esp.,  212; 
Newhall  v.  Jenkins,  2  Gray,  562 ;  Wilson  Sewing  M. 
Co.  V.  Curry,  126  Ind.,  161 ;  25  N.  E.  896. 


CITAP.  Il]  CONFESSIONS  41 

sions,  as  admissions  are  called  in  criminal 
cases,  are  admitted  against  the  accused  un- 
less made  voluntarily  as  hereinafter  ex- 
plained. 

§  25.  Confessions  not  made  voluntarily,  ex- 
cluded—What deemed  involuntary.— No  con- 
fession is  considered  voluntary  if  made  under 
inducements  of  hope  or  fear 'held  out  to  the 
accused  by  a  person  in  authority,  and  having 
reference  to  the  charge  against  the  former, 
whether  addressed  directly  to  him  or  brought 
indirectly  to  his  knowledge,  provided  that  in 
the  opinion  of  the  judge  such  inducement 
gave  the  accused  reasonable  ground  for  sup- 
posing that  by  making  a  confession  he  would 
gain  some  advantage  or  avoid  some  evil  in 
reference  to  the  proceedings  against  him. 
But  a  confession  is  not  considered  involun- 
tary because  it  appears  to  have  been  caused 
by  the  exhortations  of  a  person  in  authority 
to  make  it  as  a  matter  of  religious  duty,  or 
by  an  inducement  collateral  to  the  proceed- 
ing, or  by  inducements  held  out  by  a  person 
not  in  authority.  By  a  person  in  authority  is 
meant  any  one  having  authority  over  the 
prosecution,  or  over  the  accused  in  connection 
with  the  prosecution,  as  the  prosecutor,  of- 
ficers of  justice  having  him  in  custody,  mag- 
istrates, and  others  in  similar  positions  ;  but 


42  RELEVANCY  [PART I 

the  master  or  employer  of  the  accused  is  not 
such  a  person  in  authority  unless  the  offense 
charged  was  committed  against  him.  The 
mere  fact,  however,  that  a  confession  was 
made  after  such  inducements  had  been  held 
out  does  not  make  it  involuntary,  if,  in  the 
opinion  of  the  judge,  the  impression  pro- 
duced by  such  inducements  had  been  com- 
pletely removed  before  the  confession  was 
made,  for  in  such  cases  these  inducements 
could  not  properly  be  said  to  have  caused 
the  confession. ^"^ 

§  26.  But  a  fact  first  discovered  by  means 
of  an  involuntary  confession  may  be  proved 
by  other  evidence.— When  the  knowledge  of  a 
fact  is  obtained  by  means  of  an  involuntary 
confession  of  the  accused,  although  the  con- 
fession itself  is  inadmissible,  it  does  not  pre- 
vent the  prosecutor  from  giving  in  evidence 
the  fact  itself,  and  that  it  was  discovered 
through  information  derived  from  the  ac- 
cused. Thus  where  stolen  property,  or  the- 
instrument  of  a  crime,  or  the  body  of  a  per- 
son murdered,  has  been  discovered  by  means 

30  Ste.  Dig.,  art.  22;  1  Gr.  Ev.,  §§  217-339;  Tay. 
Ev.,  §§  872-887;  Com.  v.  Knapp,  10  Pick.,  477,  489; 
20  Am.  D.,  534,  298;  Hopt  v.  Utah,  110  U.  S.,  574, 
583;  1  Elliott  Ev.,  §§  278-286. 


CHAP.  Il]  CONFESSIONS  43 

of  information  unduly  obtained  from  the  ac- 
cused, it  is  competent  to  prove  that  he  stated 
the  thing  would  be  found  by  searching  a  cer- 
tain place,  and  that  it  was  so  found;  but  it 
would  not  be  competent  to  inquire  whether 
he  confessed  that  he  had  put  it  there.^^ 

§27.  Sworn  confessions  made  by  an  ac- 
cused person  while  under  examination  before 
a  magistrate,  excluded  as  involuntary.— Sworn 
confessions  made  by  a  party  when  under  ex- 
amination before  a  magistrate,  respecting  a 
criminal  offense  with  which  he  is  charged  at 
the  time  of  the  examination,  are  not  under  the 
common  law  received  in  evidence,  upon  the 
ground,  according  to  Prof.  Greenleaf,  that 
**if  to  the  perplexities  and  embarrassments 
of  the  prisoner 's  situation  are  added  the  dan- 
ger of  perjury  and  the  dread  of  additional 
penalties,  the  confession  can  scarcely  be  re- 
garded as  voluntary.  "^^  It  is  somewhat  diffi- 
cult to  perceive  the  force  of  this  argument, 

31  Ste.  Dig.,  art.  22;  1  Gr.  Ev.,  §§  231,  232;  Tay. 
Ev.,  §§  902,  903;  R.  v.  Gould,  9  Car.  &  P.,  364;  Duffy 
V.  People,  26  jST.  Y.,  588 ;  Daniels  v.  State,  78  Ga.,  98 ; 
6  Am.  St.  R.,  238 ;  Adams  v.  New  York,  192  U.  S., 
585;  1  Elliott  Ev.,  §  288. 

32  1  Gr.  Ev.,  §  225 ;  State  v.  Clifford,  86  Iowa,  550 ; 
53  N.  W.  299;  41  Am.  St.  R.,  518;  People  v.  Mondon, 
103  N.  Y.,  211 ;  8  N.  E.,  496 ;  57  Am.  R.,  709. 


44  RELEVANCY  f  PART  I 

or  to  discover  why  a  confession  otherwise  ad- 
missible in  evidence  must  be  conclusively  pre- 
sumed to  have  been  involuntary,  and  there- 
fore excluded,  simply  because  it  has  been 
sworn  to  by  the  party  making  it ;  but  such  is 
the  rule  as  now  established  by  numerous  de- 
cisions, both  English  and  American.  The 
rule  is  restricted,  however,  to  the  sworn 
statements  made  by  a  party  who  is  himself 
held  under  the  charge  of  a  criminal  offense 
at  the  time  he  makes  them.  Statements  upon 
oath  amounting  to  a  confession,  if  made  by 
the  prisoner  when  examined  as  a  witness  in 
another  proceeding,  are  admissible  in  evi- 
dence against  him,  unless  he  can  prove  that 
when  questions  tending  to  criminate  him  were 
put  he  had  claimed  the  protection  of  the  court 
and  had  still  been  illegally  compelled  to  an- 
swer.^^ 

§  28.  How  far  modified  by  statutes  permit- 
ting accused  to  testify,  quaere.— This  rule,  ex- 
cluding statements  made  by  the  accused  un- 

33  Ste.  Dig.,  art.  23 ;  1  Gr.  Ev.,  §  225 ;  Tay.  Ev., 
§§  895-900;  1  Wigmore  Ev.,  §§  842,  852;  note  1;  E. 
V.  Chidley  &  Cummins,  8  C.  C.  R.,  365 ;  Hendrickson 
V.  People,  10  N.  Y.  (6  Seld.),  131;  61  Am.  D.,  721; 
People  V.  Mondon,  103  N.  Y.,  211;  8  N.  E.  496;  67 
Am.  R.,  709. 


CHAP.  Il]  CONFESSIONS  45 

der  oath  in  a  criminal  proceeding  against 
liimself,  has  been  somewhat  modified  by  the 
legislation  now  adopted  in  many  of  the 
United  States,  whereby  persons  accused  of 
criminal  offenses  have  been  made  competent 
witnesses  in  their  own  behalf.  Whenever  a 
prisoner  voluntarily  testifies  as  a  witness  on 
his  own  behalf  under  any  of  these  statutes, 
either  before  a  magistrate  upon  a  prelimi- 
nary examination,  or  in  court,  any  statements 
made  by  him  under  oath  may  afterwards  be 
offered  in  evidence  against  him  in  any  sub- 
sequent trial,  whether  under  the  same  or  a 
different  indictment.^* 

§29.  Confessions  made  under  promise  of 
secrecy  or  obtained  by  deception,  not  involun- 
tary.—As  the  only  test  of  the  admissibility 
of  a  confession  is  whether  or  not  it  was  made 
voluntarily,  it  follows  that  it  may  not  be  ex- 
cluded because  made  under  a  promise  of  se- 
crecy,^^  or  in  consequence  of  a  deception  prac- 

34Whar.  Crim.  Ev.,  §§463,  464,  669;  People  v. 
Kelly,  47  Cal.,  125;  State  v.  Glass,  50  Wis.  218;  6 
N.  W.  500 ;  36  Am.  R.,  845.  But  this  rule  is  strictly 
limited  to  cases  where  the  testimony  admitted  was 
given  voluntarily  in  the  first  instance.  See  People  v. 
Sharp,  107  K  Y.,  427;  14  K  E.  319;  1  Am.  St.  R., 
851. 

35  Ste.  Dig.,  art.  24 ;  Tay.  Ev.,  §  881 ;  R.  v.  Shaw, 


46  RELEVANCY  [PART I 

ticed  on  the  accused, ^^  or  while  he  was 
drunk,^'^  or  because  it  was  made  in  answer  to 
questions  which  he  need  not  have  answered, 
whatever  may  have  been  the  form  of  them.^® 
Although  it  is  customary  to  warn  a  prisoner 
when  he  is  about  to  make  a  confession,  that 
he  is  not  bound  to  do  so,  the  omission  of  such 
warning  does  not  thereby  make  his  confes- 
sion inadmissible.^^ 

6  Car.  &  P.,  372 ;  Com.  v.  Knapp,  9  Pick.,  496 ;  20  Am. 
D.,  491;  State  v.  Mitchell,  1  Phill.  (N.  C.)  L.,  447; 
State  V.  Darnall,  1  Houst.  Cr.  C,  321. 

3«  Price  V.  State,  18  Ohio  St.,  418 ;  Com.  v.  Hanlon, 
3  Brewster,  461,  498 ;  People  v.  Barker,  6  Mich.,  277 ; 
1  Am.  St.  P.,  501 ;  Heldt  v.  State,  20  Neb.,  492 ;  30 
N.  W.  626 ;  57  Am.  P.,  835 ;  State  v.  Phelps,  74  Mo., 
128. 

3^  Com.  V.  Howe,  9  Gray,  110;  Eskridge  v.  State, 
25  Ala.,  30;  Jefferds  v.  People,  5  Parker,  C.  P.,  522, 
561;  State  v.  Grear,  28  Minn.,  426;  10  N.  W.  472; 
41  Am.  P.,  296. 

38  P.  V.  Wild,  1  Moo.  C.  C,  452 ;  Carroll  v.  State, 
23  Ala.,  28;  58  Am.  D.,  282. 

39  P.  V.  Thornton,  1  Moo.  C.  C,  27 ;  P.  v.  Long,  6 
Car.  &  P.,  179;  Com.  v.  Smith,  119  Mass.,  305;  Com. 
V.  Mosler,  4  Pa.  St.,  264 ;  People  v.  Pogers,  18  N.  Y., 
9,  14;  72  Am.  D.,  484;  Hodge  v.  State,  97  Ala.,  37; 
18  So.  164;  38  Am.  St.  P.,  146. 


CHAP.  Il]  OFFICIAL  RECORDS  47 

§  30.  Recitals  of  public  facts  in  statutes  or 
proclamations,  and  entries  of  facts  made  in 
official  registers,  admissible  in  evidence.— The 

second  exception  to  the  rule  excluding  hear- 
say, embraced  within  the  class  of  cases  (A) 
which  is  allowed  upon  the  ground  that  in  it 
the  application  of  the  three  tests  to  the  per- 
son making  the  original  statement  are  super- 
fluous, includes  statements  as  to  any  act  of 
state  or  other  matter  of  a  public  nature  con- 
tained in  the  recital  of  any  public  statute,  or 
in  any  public  proclamation,  or  any  message 
of  the  executive  to  the  legislature,  or  in  any 
legislative  resolutions,  and  statements  as  to 
the  acts  of  any  foreign  governments  and 
functionaries  contained  in  state  papers  pub- 
lished by  authority  of  congress,  and  in  dip- 
lomatic correspondence  communicated  by  the 
president  to  congress.  All  these  are  admis- 
sible evidence  of  the  facts  so  stated,  when 
such  facts  are  in  issue  or  relevant  thereto.^" 
So,  also,  the  entries  made  in  official  registers, 
or  books  kept  by  persons  in  public  office,  are 
competent  evidence  to  prove  any  relevant 
facts,  which,  having  occurred  in  the  presence 

40  1  Gr.  Ev.,  §  491;  Watkins  v.  Holman,  16  Peters, 
25,  55,  56 ;  Radcliff  v.  United  States,  7  Johnson,  38, 
51;  Tay.  Ev.,  §§  1660,  1661;  1  Ell.  Ev.,  §§  411,  412. 


48  RELEVANCY  [PART  I 

or  within  the  personal  knowledge  of  the  reg- 
istering officer,  it  was  his  duty  to  have  re- 
corded therein,  and  which  he  did  so  record 
within  a  short  time  after  their  occurrence. ^^ 
To  entitle  a  book  to  the  character  of  an  official 
register  it  need  not  be  required  by  an  express 
statute  to  be  kept,  nor  need  the  nature  of  the 
office  render  it  indispensable.  It  is  sufficient 
that  it  be  directed  by  the  proper  authority 
to  be  kept,  and  that  it  be  kept  according  to 
such  directions  for  the  purpose  of  being  re- 
ferred to  by  the  public.^^ 

§  31 .  Grounds  of  admissibility. — The  ground 
upon  which  such  extraordinary  confidence  is 
placed  in  documents  of  the  above  character, 
that  the  statements  contained  in  them  are  ac- 
cepted as  evidence  without  being  subjected  to 
the  three  tests  generally  applied  to  other 
statements,  is  principally  that  of  the  publicity 
of  their  subject-matter,  and  of  the  further 
fact  that  they  have  been  made  in  the  course 
of  duty  by   the   authorized   and   accredited 

*i  1  Gr.  Ev.,  §§483-5,  493-5;  Tay.  Ev.,  §§  1591- 
1595;  Ste.  Dig.,  art.  34;  Evanston  v.  Gium,  99  U.  S., 
660,  666;  Blackburn  v.  Crawford,  3  Wall.,  175,  189, 
191 ;  1  Elliott  Ev.,  §  413. 

42  1  Gr.  Ev.,  §  496 ;  Evanston  v.  Gunn,  supra. 


CHAP.  Il]  GENERAL  HISTORY  49 

agents  of  the  public  appointed  for  that  pur- 
pose.^^ 

§  32.  Matters  of  general  public  history  in 
accredited  works  by  deceased  or  foreign  au- 
thors—Almanacs— Maps.— Upon  the  same 
principle,  statements  as  to  matters  of  general 
public  history,  made  in  accredited  historical 
works  by  authors  deceased  or  out  of  reach  of 
process  of  the  court,  have  been  permitted  to 
be  read  in  evidence  to  prove  the  facts  so 
stated  when  relevant  to  the  issue  ;^^  and  in 
the  case  of  Reginav.  Orton,  maps  of  Australia 
were  given  in  evidence  to  show  the  situation 
of  various  places  at  which  the  defendant  said 
he  had  lived.  So,  also,  in  a  later  case  in 
Maryland,^^  it  was  held  that  an  almanac  was 
properly  admitted  in  evidence  to  prove  the 
hour  at  which  the  moon  rose  on  a  certain 
night.  It  may  well  be  doubted,  however, 
whether  the  true  ground  upon  which  the  his- 
torical works  and  almanac  above  mentioned 
were  permitted  to  be  read  in  court  was  not 

43  1  Gr.  Ev.,  §  483;  Evanston  v.  Gunn,  99  U.  S., 
660,  666. 

44  Ste.  Dig.,  art.  35 ;  1  Gr.  Ev.,  §  497 ;  Morris  v. 
Harmer,  7  Peters,  554;  Whiton  v.  Albany  City  Ine. 
Co.,  109  Mass.,  24;  1  Elliott  Ev.,  §  417. 

45  Munshower  v.  State,  55  Md.,  11. 

4 


50  RELEVANCY  [PAET  I 

that  the  facts  sought  to  be  established  by  them 
were  facts  of  which  it  was  the  duty  of  the 
court  to  take  judicial  notice  without  formal 
proof,  when  called  upon  to  do  so,  upon  being 
satisfied  as  to  their  truth,  and  that  the  books 
were  therefore  introduced  not  technically  as 
evidence,  but  for  the  purpose  of  satisfying 
the  judge  that  the  facts  sought  to  be  estab- 
lished were  proper  matters  to  be  taken  notice 
of  judicially.  The  maps  used  in  the  case  of 
Regina  v.  Orton  may  either  have  been  ad- 
mitted upon  the  same  ground,  or  may  have 
been  introduced  for  the  purpose  of  illustrat- 
ing and  showing  the  relation  of  facts  which 
the  court  took  judicial  notice  of,  or  which 
were  admitted,  or  had  been  proved  by  wit- 
nesses. Relevant  facts  contained  in  books 
of  exact  science  or  mathematics  as  the  North- 
ampton tables  of  Mortality  may  be  read  in 
evidence,^ ^  but  not  statements  in  books  of  in- 
ductive science,  as  medical  works,  which  are 
not  held  competent  evidence  for  any  purpose 
except  perhaps  to  contradict  expert  wit- 
nesses who  have  quoted  them  as  sustaining 
their  own  opinions.^^ 

46  Vicksburg  R.  R.  Co.  v.  Putnam,  118  U.  S.,  545, 
554;  Damm  v.  Damm,  109  Mich.,  619,  632;  67  N.  W. 
984;  63  Am.  St.  E.,  601. 

47  Tucker  v.  Donald,  60  Miss.,  460,  470  ;  45  Am.  R., 


CHAP.  Il]  BOOKS   OF   CORPORATIONS  51 

§33.  Entries  in  books  of  corporation  ad- 
missible in  certain  cases.— When  the  entries 
made  in  the  books  of  a  corporation  relate  to 
acts  of  a  public  character,  and  have  been 
made  by  the  proper  officer,  they  are  receiv- 
able in  evidence,  either  for  or  against  the  cor- 
poration, for  the  purpose  of  proving  its  or- 
ganization and  existence  and  the  regularity 
and  legality  of  its  corporate  proceedings, 
such  books  being  regarded  in  the  light  of 
quasi  official  registers  for  the  purpose  of  re- 
cording such  proceedings ;  but  when  sucb  en- 
tries relate  to  the  private  transactions  of  the 
company,  they  will  be  inadmis sable,  except, 
perhaps,  in  actions  between  its  own  mem- 
bers,^^  and  in  actions  against  the  corporation 
by  a  creditor  in  which  they  are  considered  as 
prima  facie  admissions  of  fact  made  on  be- 

416 ;  Ashworth  v.  Kittredge,  12  Cush.,  193 ;  59  Am. 
Dec,  178,  note;  Boyle  v.  State,  57  Wis.,  472;  46  Am. 
E.,  41 ;  City  of  Bloomington  v.  Shrock,  110  111.,  219; 
51  Am.  R,  678 ;  Union  Pacific  E.  E.  Co.  v.  Yates,  49 
U.  S.  App.,  241 ;  79  Fed.  E.,  584 ;  40  L.  E.  A.,  553, 
note;  Eogers  on  Expert  Testimony,  §§  164-184. 

48  Tay.  Ev.,  §  1781 ;  Cook  on  Stock  &  Corp.,  §  714 ; 
Owings  V.  Speed,  5  Wheat.,  420 ;  Argus  Co.  v.  Albany, 
55  N.  Y.,  495 ;  14  Am.  E.  296 ;  Duke  v.  Cahawba  Nav. 
Co.,  10  Ala.,  82 ;  44  Am.  D.,  472.  How  proved,  see 
First  Nat.  Bank  v.  Tesdale,  84  N.  Y.,  665 


52  RELEVANCY  [PAET  I 

half  of  the  corporation  by  its  agents  in  the 
course  of  their  employment,  with  the  same  ef- 
fect as  like  admissions  made  by  the  agents  of 
individuals  under  similar  circumstances.^^* 
§  34.  Records  of  judicial  proceedings  con- 
clusive proof  of  the  substantive  facts  recited. 
— The  third  exception  to  the  rule  excluding 
hearsay  relates  to  the  records  of  judicial  pro- 
ceedings, which,  because  the  law  always  pre- 
sumes that  every  court  keeps  a  faithful  rec- 
ord of  its  own  proceedings,  are  not  only  com- 
petent but  conclusive  evidence  to  prove  that 
the  proceedings  therein  recorded  actually 
took  place  as  therein  recited,  and  that  judg- 
ment was  actually  rendered  as  therein  set 
forth.^^  "Without  such  conclusive  presump- 
tion of  the  correctness  of  judicial  records,  no 
judgment  could  ever  be  practically  enforced, 
for  it  would  always  be  in  the  power  of  any 
party  interested  to  dispute  its  existence  at 
any  time,  and  this  would  involve  a  new  inves- 

^^^  City  Electric  Ry.  Co.  v.  First  Nat.  Bank,  62 
Ark.,  32;  34  S.  W.  89;  54  Am.  St.  R.,  282,  287; 
Zang  V.  Wyant,  25  Colo.,  351,  362;  56  P.,  565; 
71  Am.  St.  R.,  145,  154;  2  Whar.  Ev.,  §  1131;  2 
Wigmore  Ev.,  §  1557  (2). 

49  Ste.  Dig.,  art.  40;  1  Gr.  Ev.,  §  538;  Tay.  Ev., 
§  1667;  2  Elliott  Ev.,  §  1525. 


CHAP.  Il]  JUDICIAL    RECORDS  53 

tigation  and  a  new  trial  which  would  be  no 
more  conclusive  than  the  first.  Of  course  it 
would  be  absurd  to  apply  any  tests  to  that 
which  the  law  conclusively  assumes  to  be 
correct.  As  the  record  is  conclusive  evi- 
dence of  the  rendition  of  the  judgment,  it  fol- 
lows as  a  natural  consequence  that  it  is  also 
conclusive  evidence  of  the  existence  of  that 
result  or  state  of  things  which  the  judgment 
necessarily  effects.^*^  Thus  the  record  of  a 
suit  wherein  the  plaintiff  recovered  judgment 
for  $10,000  damages  is  conclusive  proof  that 
upon  the  rendition  thereof  the  defendant  was 
debtor  to  the  plaintiff  in  that  amount;  the 
record  of  a  proceeding  resulting  in  a  decree 
of  divorce  a  vinculo  matrimonii  is  conclusive 
proof  that  the  complainant  and  defendant  are 
no  longer  husband  and  wife,  and  the  record 
of  a  proceeding  in  bankruptcy  is  conclusive 
proof  that  the  person  therein  stated  to  have 
been  adjudicated  a  bankrupt  is  a  bankrupt. 

§  35.  But  not  of  the  correctness  of  the  de- 
cision rendered,  except  in  certain  oases.— But 
although  the  record  is  always  conclusive 
proof  of  the  rendition  of  the  judgment  therein 

«o  Ibid;  King  v.  Chase,  15  N.  H.,  9;  14  Am.  D., 
675;  Key  v.  Dent,  14  Md.,  86,  98;  Barr  v.  Gratz,  4 
Wheat.,  213,  220;  Ennis  v.  Smith,  14  How.,  400,  430. 


64  RELEVANCY  [PAET  I 

recited,  and  of  the  result  accomplished  by  it, 
it  by  no  means  follows  that  it  is  in  all  cases 
equally  conclusive  or  even  competent  evi- 
dence to  establish  the  correctness  of  the  ver- 
dict of  the  jury,  or  the  finding  of  matters  of 
fact  by  the  court  upon  which  such  judgment 
was  predicated  ;  for  as  it  often  happens  that 
a  tribunal,  either  from  not  having  sufficient 
evidence  before  it,  or  from  other  causes,  may 
have  arrived  at  a  wrong  decision  as  to  the 
truth  of  the  matters  of  fact  submitted  to  it, 
such  verdict  can  never  amount  to  more  than 
mere  presumptive  evidence  of  the  truth  of 
such  matters.  Thus  in  the  examples  given 
in  the  preceding  section,  the  record  men- 
tioned would  not  furnish  conclusive  proof 
that  the  defendant  had  actually  committed 
the  tort  for  which  judgment  was  rendered 
against  him  in  the  first  case,  or  that  the  de- 
fendant in  the  second  had  been  guilty  of  the 
misconduct  which  was  the  ground  on  which 
the  divorce  was  granted,  or  that  the  party 
adjudicated  a  bankrupt  in  the  third  case  had 
actually  done  anything  to  bring  him  within 
the  provisions  of  the  law  ;  for  in  each  in- 
stance it  is  possible  that  the  jury  or  judge 
may  have  been  induced  by  false  or  imperfect 
testimony  to  have  rendered  a  decision  at  va- 
riance with  the  true  facts  of  the  case.    Thus 


CHAP.  Il]  JUDICIAL    RECORDS  B5 

it  will  be  seen  that  every  record  of  a  court  of 
justice  consists  of  two  distinct  parts,  which 
have  been  respectively  denominated  by  Mr. 
Best  "^^  the  substantive  and  judicial  portions. 
In  the  former  the  court  records  or  attests  its 
own  proceedings  and  acts,  and  to  this  un- 
erring verity  is  attributed  by  the  law;  while 
the  latter  or  judicial  portion,  by  which  the 
court  expresses  its  judgment  or  opinion  on 
the  matter  before  it,  is  only  conclusive,  or  in- 
deed competent,  as  evidence,  under  certain 
circumstances  which  we  shall  now  consider. 
§36.  Rules  regulating  the  admissibility 
and  conclusiveness  of  the  judicial  portions  of 
records: 

(a)  Admissible  and  conclusive  as  between 
the  parties  and  their  privies; 

(b)  Inadmissible  in  aU  other  cases,  except 
1st,    That  judgments   declaratory  of  the 

status  of  a  person  or  thing  are  admissible  and 
generally  conclusive  proof  of  such  status; 
and 

2nd,  That  adjudications  upon  questions  in- 
volving custom  and  pedigree  are  admissible 
in  certain  oases  as  between  others  than  par- 
ties or  privies.— 

The  question  as  to  how  far  this  judicial 
fsi  Best  on  Ev.,  §  590. 


56  RELEVANCY  [PAHT  I 

portion  of  a  record  is  properly  admissible  as 
evidence  of  the  matters  of  fact  which  it  de- 
termines, is  made  dependent  upon  several 
considerations.  While,  upon  the  one  hand, 
public  policy  requires  that  some  limit  should 
be  opposed  to  the  continuance  of  litigation 
upon  the  same  subject-matter,  after  it  has 
once  been  decided  by  a  competent  tribunal,  it 
is,  on  the  other  hand,  an  elementary  rule  and 
principle  of  justice,  that  no  man  should  be 
bound  by  an  act  or  admission  of  another 
to  which  he  is  a  stranger.  Consequently 
no  one  ought  to  be  concluded  or  affected, 
as  to  a  matter  of  private  right,  by  a 
judgment  or  verdict  to  which  neither 
he  nor  any  one  through  whom  he  claims 
was  a  party,  to  which  no  defense  could 
have  been  made,  and  from  which  no  ap- 
peal could  have  been  taken  on  his  behalf; 
which  may  have  resulted  from  the  negligence 
of  another,  or  may  even  have  been  obtained 
by  means  of  fraud  and  collusion.  Neither 
would  it  be  fair  that  a  party  should  be  con- 
cluded by  an  adverse  verdict  under  circum- 
stances in  which  he  could  not  have  availed 
himself  of  it  as  a  protection,  if  it  had  been 
rendered  in  his  favor.  So,  also,  it  would  be 
unjust  that  the  rights  of  a  plaintiff  or  defend- 
ant should  be  determined  by  the  result  of  a 


CHAP.  Il]  JUDICIAL    RECORDS  57 

former  proceeding  even  between  the  same 
parties,  in  cases  where,  from  the  nature  of  the 
former  proceeding,  he  was  not  entitled  to 
support  his  case  by  the  same  evidence  which 
he  might  have  availed  himself  of  in  the  sec- 
ond suit,  for  he  would  thus  be  virtually  de- 
prived in  the  second  suit  of  evidence  to  the 
benefit  of  which  he  is  by  law  entitled.  There- 
fore the  following  rules  have  been  adopted  in 
regard  to  the  admissibility  and  conclusive- 
ness of  the  judicial  portions  of  records : 

(a)  Every  judgment  rendered  by  a  court 
having  competent  jurisdiction  over  the  par- 
ties and  the  subject-matter  is,  as  between  the 
parties  thereto  and  their  privies  (i.  e.,  persons 
claiming  through  or  under  parties  by  title  de- 
rived subsequently  to  the  rendition  of  the 
judgment),  conclusive  proof  of  all  facts  actu- 
ally decided  by  the  court,  and  appearing  from 
the  record  itself  to  be  the  ground  on  which  the 
judgment  was  based,  unless  evidence  was  ad- 
mitted in  the  action  in  which  judgTQcnt  was 
delivered,  which  is  excluded  in  the  action  in 
which  that  judgment  is  intended  to  be  proved, 
or  vice  versd.^^ 

52  Ste.  Dig.,  art.  41;  1  Gr.  Ev.,  §§  523,  523,  524; 
Tay.  Ev.,  §§  1682-1723;  Starkie  Ev.,  pp.  *323,  etc.; 
Beloit  V.  Morgan,  7  Wall.,  619,  632;  Lawrence  v. 


68  RELEVANCY  [PABT I 

(b)  No  record  of  any  judgment  is  admis- 
sible in  evidence  to  prove  or  render  probable 
the  existence  of  any  matter  of  fact  therein 
stated  to  have  been  decided,  or  which  might 
be  inferred  from  the  rendition  of  such  judg- 
ment, otherwise  than  as  stated  in  the  pre- 
ceding rule,  except  that :  1.  The  records  of  all 
judgments  rendered  by  courts  of  competent 
jurisdiction  which  are  declaratory  of  the 
status  of  a  person  or  thing,  are  always  rele- 
vant to  establish  the  existence  of  such  status 
as  declared  therein;  all  such  records,  when 
admissible,  are  conclusive,  excepting  those  of 
inquisitions  of  lunacy  and  inquests  of  office, 
which  for  certain  purposes  and  as  against 
certain  persons  are  prima  facie  evidence 
only.^2  2.  In  all  cases  where  general  repu- 
tation is  competent  evidence,  such  as  those  in- 
volving questions  of  custom,  prescription  and 

Vernon,  3  Sum.,  80;  15  Fed.  Cas.,  84;  Case  v.  Reeve, 
14  Johns.  81 ;  Embury  v.  Conner,  3  N.  Y.,  511 ;  53 
Am.  R.,  533 ;  Cromwell  v.  County  of  Sac,  94  U.  S., 
351;  2  Elliott  Ev.,  §  1529. 

83  1  Gr.  Ev.,  §§525,  550,  556;  Starkie  Ev.,  pp. 
*371-382;  Tay.  Ev.,  §1674;  Burlen  v.  Shannon,  3 
Gray,  387,  389;  Ennis  v.  Smith,  14  How.,  400,  430; 
Mut.  Life  Ins.  Co.  v.  Tisdale,  91  U.  S.,  238,  241; 
Packham  v.  Glendemeyer,  103  Md.,  416,  423,  63,  A 
1048;  2  Elliott  Ev.,  §§1530-1532. 


CHAP,  ir]  JUDICIAL  RECORDS  59 

pedigree,  the  records  of  adjudications  relat- 
ing thereto  are  admissible  in  evidence,  not 
only  as  between  parties  and  privies  (where 
they  would  be  conclusive),  but  also  as  be- 
tween all  others,  as  being  of  the  same  nature, 
but  much  stronger  than  mere  reputation.^^ 

§37.  Why  judgments  declaratory  of  the 
status  of  a  person  or  thing  are  always  admis- 
sible to  prove  it.— The  reasons  for  the  excep- 
tions by  which  the  records  of  judgments  de- 
claratory of  the  status  of  persons  or  things 
are  admissible,  and  in  most  cases  conclusive 
evidence  to  prove  such  status  as  against  those 
not  parties  thereto,  are  that  as  regards  those 
cases  declaratory  of  the  status  of  persons,  it 
is  upon  grounds  of  public  policy  deemed  es- 
sential that  the  legal  social  relations  of  every 
member  of  the  community  should  not  be  left 
doubtful,  but,  having  been  clearly  defined  by 
one  solemn  adjudication,  should  thereafter 
be  conclusively  set  at  rest;  and  as  regards 
those  cases  declaratory  of  the  status  of 
things,  and  especially  in  questions  as  to  prop- 
erty seized  and  proceeded  against,  because 
generally  every  one  who  can  possibly  be  af- 

54  1  Gr.  Ev.,  §  526 ;  Tay.  Ev.,  §  1683 ;  Starkie  Ev., 
p.  *386 ;  Patterson  v.  Gaines,  6  How.,  550,  599 ;  May- 
bee  V.  Avery,  18  Johns.,  353. 


60  RELEVANCY  [PART 1 

fected  by  the  decision  has  a  right  to  appear 
and  assert  his  own  rights,  by  becoming  an 
actual  party  to  the  proceedings.^^  Such 
judgments  are  known  as  judgments  in  rem. 
§  38.  Who  are  parties  to  a  judgment.— The 
term  parties  to  a  judgment,  as  used  in  this 
connection,  is  in  the  United  States  generally 
understood  to  include  all  persons  who  are 
directly  interested  in  the  subject-matter,  and 
have  a  right  to  control  the  proceedings  and 
to  appeal  from  the  decision;  as  for  example, 
a  plaintiff  in  attachment  who  has  given  an 
indemnity  bond  to  the  sheriff  for  levying  up- 
on certain  property,  and  who  would  in  this 
sense  be  considered  a  party  to  any  action  of 
trespass  brought  against  the  latter  for  mak- 
ing such  levy.^^  But  although  one  or  two 
of  the  English  cases  appear  to  favor  this  lib- 
eral construction  of  the  rule,  there  is  no  di- 
rect authority  in  the  courts  of  that  country 
for  extending  it  beyond  those  who  are  named 
in  the  record.^'^     The  parties  to  the  record 

56  1  Gr.  Ev.,  §  525;  Tay.  Ev.,  §  1676. 

t5«  1  Gr.  Ev.,  §§523;  Lovejoy  v.  Murray,  3  Wall., 
18 ;  Eobbms  v.  Chicago,  etc.,  4  Wall.,  657,  672 ;  Stovall 
v.  Banks,  10  Wall.,  583,  588. 

67  Tay.  Ev.,  §§  1687,  1688. 


CHAP.  Il]  JUDICIAL   RECORDS  61 

of  a  criminal  proceeding,  being  the  state  and 
the  accused,  it  follows  from  the  preceding 
rules  that  such  a  record,  while  admissible  in 
civil  causes  to  prove  the  fact  of  the  acquittal 
or  conviction  of  the  prisoner,  is  not  relevant 
to  show  that  he  did  or  did  not  commit  the  act 
for  which  he  was  indicted.^^ 

§39.  Admissibility  of  record  dependent 
upon  whether  couii;  had  jurisdiction,  which 
may  always  be  inquired  into.— As  already 
stated,  the  admissibility  in  evidence  of  every 
record  is  conditional  upon  the  fact  of  the 
court  which  rendered  the  judgment  having 
had  competent  jurisdiction  over  the  parties 
and  the  subject-matter;  and  although  such 
judgments  are,  when  admissible,  generally 
speaking,  conclusive  of  the  matters  decided 
by  them,  the  question  as  to  whether  the 
courts  which  rendered  them  had  competent 
jurisdiction,  is  one  which  may  always  be  in- 
quired into ;  and  it  is  also  open  to  the  party 
against  whom  such  a  record  is  offered  in 
evidence,  to  show  that  the  judgment  had  been 
reversed  on  appeal,  or  (if  he  be  not  a  party  or 
privy)  he  may  show  that  it  was  obtained  by 
fraud  or  collusion,  provided  that  neither  he, 

58  1  Gr.  Ev.,  §  537. 


62  RELEVANCY  [PART  I 

nor  any  person  to  whom  he  is  privy,  was  a 
party  thereto. ^^ 

§  40.  Same  doctrine  applicable  to  foreign 
as  weU  as  domestic  judgments.— The  forego- 
ing remarks  apply  to  the  records  of  all  judg- 
ments rendered  by  courts  of  the  same  state 
and  of  the  United  States,  and  also  to  those 
rendered  by  the  courts  of  sister  states  of  the 
Union,  under  the  provision  of  the  constitu- 
tion of  the  United  States,  requiring  full  faith 
and  credit  to  be  given  in  each  state  to  the 
public  acts,  records  and  judicial  proceedings 
of  every  other  state,  and  the  laws  of  congress 
thereunder.^*^  They  may  also  be  said  to  be 
equally  applicable,  practically,  to  records  of 
foreign  courts;  for,  although  the  American 
courts  have  until  recently  maintained  the 
general  doctrine  that  foreign  judgments, 
when  relevant,  are  prima  facie  evidence  only, 
and  impeachable,  no  modern  case  can  be 
found  in  which  such  a  judgment  has  been  per- 

59  Ste.  Dig.,  art.  46 ;  1  Whar.  Ev.,  §  795,  etc. ; 
Thompson  v.  Whitman,  18  WalL,  457;  Christmas  v. 
Russell,  5  id.,  290,  304;  Ferguson  v.  Crawford.  70 
N.  Y.,  253;  26  Am.  R.,  589.  As  to  fraud,  see  Atlas 
Nat.  Bank  v.  More,  152  111.,  528,  42;  38  N.  E.  684; 
43  Am.  St.  R.,  274,  284 ;  also  1  Whar.  Ev.,  §  797. 

60  Const.  U.  S.,  art.  4,  §  1 ;  Rev.  Stat.  U.  S.,  §  906, 
etc.;  Christmas  v.  Russell,  supra. 


CHAP.  Il]  GENERAL    REPUTE  63 

mitted  to  be  impeached,  except  for  want  of 
jurisdiction  or  fraud;  and  some  recent  de- 
cisions have  expressly  held  that  they  can 
be  impeached  upon  no  other  grounds,  and  are 
conclusive  upon  the  merits.^^ 

§  41.  General  reputa-tion  sometimes  admis- 
sible in  evidence.— The  fourth  exception  to 
the  rule  excluding  hearsay  evidence  com- 
prises those  statements  made  by  third  parties 
out  of  court,  by  means  of  which  a  witness  has 
become  aware  of  the  existence  of  any  general 
reputation,  the  existence  of  which  is  relevant 
to  the  issue.  As  general  reputation  is  merely 
the  general  opinion  or  conclusion  concerning 
a  particular  matter  which  has  been  arrived  at 
by  society  at  large,  or  some  indefinite  part  of 
it,  through  the  combined  knowledge  and  ex- 
perience of  its  individual  members,  it  be- 
comes superfluous  to  apply  the  three  ordinary 
tests  of  truth  to  the  statements  offered  m 
evidence  merely  as  the  expresions  of  such 
general  opinion,  since,  in  this  case,  the  re- 
el Ste.  Dig.,  art.  47 ;  Story,  Confl.  Laws,  §  608 ;  2 
Whar.  Ev.,  §§  801-803;  Hilton  v.  Guyot,  159  U.  S., 
113,  162;  Lazier  v.  Westcott,  26  N.  Y.,  146,  150;  82 
Am.  D.,  404;  Dunlap  v.  Cody,  31  Iowa,  260;  7  Am. 
E.,  129 ;  Dunstan  v.  Higgins,  138  N.  Y.,  70 ;  33  N.  E., 
729 ;  34  Am.  St.  E.,  431 ;  20  L.  E.  A.,  668. 


64  BELEVANCY  [PAET  I 

liance  is  not  placed  upon  the  credit  due  to 
the  assertions  of  any  single  individual,  but 
rests  upon  the  fact  that  indefinite  numbers 
concur  in  expressing  the  same  belief.  Hence 
the  true  subject  of  inquiry  is,  not  whether  the 
several  statements  giving  expression  to  this 
belief  are  strictly  true  and  accurate  as  a  mat- 
ter of  fact,  but  rather,  whether  or  not  they 
were  very  generally  made  by  persons  of  that 
class  best  situated  for  obtaining  information 
upon  the  subject.  Besides  those  cases  in 
which  the  existence  of  a  general  reputation 
as  to  certain  matters  becomes  sometimes 
relevant,  as  affording  a  probable  cause  for  or 
explanation  of  some  act,  there  are  others  in- 
volving a  class  of  facts  which,  being  ordi- 
narily imperceptible  to  the  senses,  and  there- 
fore incapable  of  proof  by  the  usual  meth- 
ods, must  be  established,  if  at  all,  by  general 
reputation,  that  being  the  best  means  of  proof 
which  the  nature  of  the  case  affords.  Such 
facts  are  character,  pedigree  or  relationship, 
solvency  or  wealth,  prescription,  custom, 
boundaries,  and  the  like,  the  nature  or  ex- 
istence of  which  can  frequently  be  proved 
only  by  general  repute  among  the  particular 
class  of  persons  most  favorably  situated  for 
acquiring  information  in  regard  to  them. 
Thus,  a  man's  character  is  shown  by  his  gen- 


CHAP.  Il]  GENERAL   REPUTE  65 

eral  repute  among  those  who  are  acquainted 
with  him;  his  relationship  to  any  family  by 
general  repute  among  the  members  of  that 
family ;  and  questions  of  prescription,  custom 
and  boundaries,  in  so  far  as  they  are  matters 
of  general  interest  to  any  considerable  por- 
tion of  the  community,  may  be  proved  by  the 
general  reputation  prevailing  among  the 
class  so  interested  in  tliem.^-  So,  also,  where 
it  is  a  question  whether  two  persons  are  hus- 
band and  wife,  the  facts  that  they  cohabited 
together,  and  were  generally  reputed  to  be 
such  among  their  acquaintances,  ar6  relevant 
as  competent  evidence  from  which  a  valid 
marriage  between  them  may  be  inferred,  ex- 
cepting in  criminal  prosecutions  for  bigamy 
and  adultery,  and  civil  suits  for  damages  for 
the  seduction  of  a  spouse.^^  These  excep- 
ts Starkie  Ev.,  pp.  *43-47 ;  1  Gr.  Ev.,  §  101 ;  Tay. 
Ev.,  §§  577-599;  2  Wigmore  Ev.,  §§  1610,  et  seq. 

63  1  Gr.  Ev.,  §  107;  2  id.,  §  462;  Tay.  Ev.,  §  578; 
Ste.  Dig.,  art.  53.  In  England,  and  also  in  some 
jnrisdictions  in  this  country,  an  additional  exception 
is  made  to  the  competency  of  such  evidence  to  prove 
marriage  in  the  case  of  proceedings  for  divorce,  but 
there  is  great  diversity  in  the  practice  prevailing  upon 
this  point  in  different  states.  See  2  Bishop  Mar.  & 
Div.,  §§  266-276;  Jewell  v.  Jewell,  1  How.,  209,  232; 
Blackburn  v.  Crawford,  3  Wall.,  175,  191;  Jones  v. 


66  RELEVANCY  [PAET  I 

tions  rest  on  the  ground  that  such  proceed- 
ings, being  of  a  penal  nature,  require  the 
strictest  proof,  since  the  accused  has  the  pre- 
sumption of  innocence  in  his  favor,  which  is 
sufficient  alone  to  overcome  the  presumption 
of  marriage;  and  a  further  reason  for  the 
exception  in  civil  actions  for  the  seduction 
of  an  alleged  husband  or  wife  seems  to  be, 
to  prevent  parties  from  setting  up  pretended 
marriages  for  evil  purposes.®* 

§42.  (B.)  Second  class  of  exceptions  to 
rule  excluding  hearsay— Statements  made  un- 
der certain  circumstances  by  persons  since  de- 
ceased, insane  or  permanently  beyond  the 
reach  of  process.— We  now  come  to  the  second 
class  of  exceptions  to  the  rule  excluding  hear- 
say, being  certain  declarations  or  statements 
to  which  some  one  or  more  of  the  three  tests 
cannot  be  applied  by  reason  of  the  death,  in- 
sanity or  permanent  absence  from  the  state 
of  the  person  who  made  them,  but  which  were 
made  under  conditions  which  the  law  regards 
as  furnishing  a  sufficient  guarantee  of  their 
truth  to  justify  their  reception  as  evidence 

Jones,  48  Md.,  391,  397;  30  Am.  E.,  466;  Badger  v. 
Badger,  88  N.  Y.,  546;  42  Am.  R.,  263. 
«4  Best  on  Ev.,  §  349;  Tay.  Ev.,  §  172. 


CHAP.  II ]         EVIDENCE   IN   FORMER   CASE  67 

without  being  subjected  to  such  tests.  These 
declarations  are : 

§  43.     (1)     Evidence  given  in  former  pro- 
ceeding, or  at  earlier  stage  of  same  action.— 

Testimony  given  at  an  earlier  stage  of  the 
same  action,  or  in  a  previous  one,  between 
the  same  parties  or  their  representatives  in 
interest,  and  involving  substantially  the  same 
question,  by  witnesses  since  deceased  or  in- 
sane, is  always  admissible  in  evidence;  pro- 
vided the  person  against  whom  it  is  given,  or 
some  one  through  whom  he  claims,  had  the 
right  and  opportunity  to  cross-examine  the 
declarant  when  he  was  examined  as  a  wit- 
ness.^^  Such  statements,  if  correctly  re- 
ported, would  be  entitled  to  almost  the  same 
consideration  as  if  made  in  open  court,  for 
they  would  have  been  subjected  to  all  the  tests 
which  could  be  applied  in  the  latter  case,  ex- 
cepting that  the  demeanor  of  the  witness 
could  not  be  seen  and  commented  upon;  but 
as  this  is  the  least  important  of  the  three 
tests,  it  is  found  that  much  less  injustice  is 


65  Ste.  Dig.,  art.  32.  When  witness  dead.  Mattox 
V.  United  States,  156  U.  S.,  237,  240;  Mineral  Point 
R.  R.  Co.  V.  Keep,  22  111.,  9 ;  74  Am.  D.,  124.  When 
insane.  Emig  v.  Diehl,  76  Pa.  St.,  373 ;  Drayton  v. 
Wells,  1  Nott  &  McC,  409 ;  9  Am.  D.,  718. 


68  RELEVANCY  [ PART  I 

done  by  waiving  it,  in  cases  where  it  is  im- 
practicable to  apply  it,  than  would  result 
from  such  a  rigid  enforcement  of  the  rule  re- 
quiring it  as  would  oftentimes  exclude  im- 
portant testimony  which  could  not  be  sup- 
plied from  any  other  source.^''  Courts  are 
therefore  disposed  to  put  a  liberal  construc- 
tion upon  this  exception  and  to  admit  testi- 
mony of  this  kind  whenever  it  appears  that 
the  party  offering  it  has  used  all  reasonable 
efforts  to  secure  the  personal  attendance  of 
the  witness,  and  has  been  unable  to  do  so  :®^ 
as  for  example,  it  has  been  extended  to  in- 
clude cases  where  the  witness  was  so  ill  that 
he  would  probably  never  be  able  to  travel  f^ 
where  he  was  kept  out  of  the  way  by  the  ad- 
verse party ,^^  and  some  cases  where  he  could 
not    be    found.'^*^     Such    testimony   may   be 

66  Best  on  Ev.,  §  496 ;  1  Elliott  Ev.,  §  496,  §  320. 

67  Ste.  Dig.,  art.  32;  Tay.  Ev.,  §§464-477;  1  Gr. 
Ev.,  §§  163-166. 

68  Miller  v.  Russell,  7  Martin,  266  (N.  S.) ;  Emig 
V.  Diehl,  76  Pa.  St.,  373. 

69Winianis  v.  State,  19  Ga.,  402;  Reynolds  v. 
United  States,  98  U.  S.,  145,  158. 

^'^R.  V.  Scaife,  17  Q.  B.,  238;  Wilbur  v.  Selden, 
6  Cow.,  162;  State  v.  Staples,  47  N.  H.,  113.  Also, 
in  civil  cases,  where  out  of  the  jurisdiction.  Noble  v. 
McClintock,  6  W.  &  S.,  58,  61 ;  Mims  v,  Sturtevant, 


CHAP.  Il]  DYING  DECLARATIONS  69 

proved  by  any  witness  who  was  present  and 
heard  it  given  even  though  an  official  stenog- 
rapher had  taken  it  down  at  the  time.'^^ 

§  44.  (2)  Dying  declarations.— Declara- 
tions made  by  a  person  under  a  full  appre- 
hension of  impending  death,  and  after 
having  given  up  all  hope  of  recovery,  are 
admitted  in  evidence  in  trials  for  the 
homicide  of  the  declarant,  to  prove  the 
cause  of  his  death,  or  any  of  the  circum- 
stances of  the  transaction  which  resulted 
in  it.  This  exception  is  made  because 
it  is  considered  that,  under  such  solemn  cir- 
cumstances, the  declarant  could  have  no  ade- 
quate temptation  to  falsehood ;  and  inasmuch 
as  ordinarily  third  persons  are  not  present 
as  eye-witnesses  to  a  murder,  it  would  often 
happen  that  unless  such  dying  declarations 
were  received,  the  murderer  might  escape 
justice.'^'^ 

§  45.  (3)  Declarations  made  in  the  ordi- 
nary  course   of   business.— Declarations   by 

36  Ala.,  63.  But  authorities  are  conflicting  on  this 
point.    See  note  65  Am.  D.,  p.  676. 

^iStudebaker  v.  Taylor,  170  Ind.,  498,  509;  83 
N.  E.,  747;  127  Am.  St.  R.,  397,  406. 

72Ste.  Dig.,  26;  1  Gr.  Ev.,  §§  156-162;  Tay.  Ev., 
§§  714-722;  Best  Ev.,  §  505;  1  Elhott  Ev.,  §  334. 


70  RELEVANCY  [PABT I 

persons  having  no  interest  in  stating  an  un- 
truth, made  in  the  ordinary  course  of  their 
business  or  in  the  discharge  of  professional 
duty,  and  from  their  own  personal  knowledge, 
at  or  near  the  time  when  the  matter  stated  oc- 
curred, are  admitted  to  prove  any  facts  nec- 
essary to  the  performance  of  a  duty  by  the 
declarant.  This  exception  is  made  upon  the 
ground  that,  in  the  absence  of  all  suspicion  of 
sinister  motives,  a  strong  presumption  arises 
that  statements  made  in  the  ordinary  routine 
of  business  are  correct;  and  more  especially 
is  this  the  case  when,  as  is  most  usual,  such 
declarations  have  been  made  in  the  form  of 
written  entries  in  some  book  or  record  kept 
by  the  declarant  for  his  own  private  use,  or 
that  of  an  employer,  and  which  it  would  there- 
fore be  plainly  for  his  own  advantage  for  him 
to  keep  accurately.  Unless  statements  of  this 
kind  were  received  in  evidence,  it  would  be 
next  to  impossible  to  prove  ordinary  store 
accounts  for  goods  sold  and  delivered,  in 
cases  where  the  persons  who  had  delivered 
and  charged  them  had  since  diedj^    This  rule 

73  Ste.  Dig.,  art.  27;  Tay.  Ev.,  §§  696-713;  1  Gr 
Ev.,  §§115-119;  Price  v.  Torrington,  1  Sm.  Lead. 
Cas.  (7th  Am.  ed.),  *394;  Nicholls  v.  Webb,  8  Wheat., 
326,  334;  Barber  v.  Bennett,  58  Vt.,  476;  56  Am.  K., 


CHAP,  II]  ENTRIES    IN    SHOP    BOOKS  71 

lias  been  extended  in  some  of  the  United 
States  to  apply  to  entries  made  by  the  party 
himself  in  his  own  shop  books.  The  extent  to 
which  such  entries  are  admitted  in  evidence 
is  regulated  by  local  practice,  which  varies 
greatly  in  the  different  states,  many  of  which 
still  adhere  to  the  common-law  rule  as  above 
given,  restricting  the  admissibility  of  decla- 
rations made  in  the  course  of  business  to 
those  of  declarants  who  had  no  interest  to 
falsify^* 

565.  But  see  Tome  Inst.  v.  Davis,  87  Md.,  591 ;  41 
A.,  496;  14  L.  N.  S.,  292. 

^  *  A  full  statement  of  the  law  upon  this  subject  will 
be  found  in  the  note  of  the  American  editors  to  the 
case  of  Price  v.  Earl  of  Torrington,  1  Sm.  Lead.  Cas. 
(7th  Am.  ed.),  p.  *407.  Previous  to  the  adoption  of 
the  statutes  rendering  parties  competent  witnesses  in 
their  own  behalf,  it  was  held  in  the  states  of  Massa- 
chusetts, New  Hampshire,  Maine,  Pennsylvania,  South 
Caroline,  Connecticut  and  Delaware,  that  entries 
made  by  a  party  in  his  own  books  were  admissible  in 
evidence  as  relevant  facts,  in  proof  of  work  done  and 
goods  delivered  by  said  party,  when  it  appeared  to 
the  judge  from  inspection  of  said  books  that  they 
were  a  register  of  the  daily  business  of  the  party, 
honestly  and  fairly  kept,  without  erasures  in  a  ma- 
terial part,  save  such  as  were  satisfactorily  explained, 
and  where  the  party  him?elf  made  oath  in  open  court 


72  EELEVANCY  [PART I 

§  46.  (4)  Declarations  made  against  the 
interest  of  the  declarant.— Declarations  made 
by  a  person  who  had  peculiar  means  of  know- 
ing the  matter  stated,  and  who  had  no  inter- 
est to  misrepresent  it,  are  admitted  in  evi- 
dence when  shown  to  have  been  opposed  to 

that  they  were  the  books  in  which  the  accounts  of  his 
ordinary  business  transactions  were  usually  kept ;  that 
the  articles  therein  charged  were  actually  delivered, 
and  the  labor  and  services  therein  charged  were  actu- 
ally performed ;  that  the  entries  were  made  at  or  about 
the  time  of  the  transactions,  and  were  the  original 
entries  thereof,  and  that  the  sums  charged  and  claimed 
had  not  been  paid.  The  same  rule  prevailed  also  in 
the  states  of  New  York,  Illinois,  New  Jersey,  Georgia 
and  Ohio,  except  that  in  these  latter  the  suppletory 
oath  of  the  party  himself  was  neither  required  nor 
admitted.  In  the  states  of  Maryland,  North  Caro- 
lina, Tennessee,  Alabama  and  Vermont,  the  entries 
of  a  party  in  his  own  books  are  not  admissible  in  evi- 
dence, except  where  supported  by  his  own  oath,  and 
then  only  for  small  amounts  regulated  by  statute.  In 
Indiana,  Mississippi,  Virginia  and  Kentucky,  the 
common-law  rule  prevails.  Of  course  the  statutes 
making  parties  competent  witnesses  enable  them  to 
use  their  books  to  refresh  their  memory  in  testifying. 
In  all  cases  where  the  entries  made  in  his  own  books 
by  a  person,  who  has  since  died  or  become  insane, 
would  have  been  evidence  in  his  own  behalf,  if  sup- 


CHAP.  Il]    DECLARATIONS    AGAINST    INTEREST  73 

the  pecuniary  or  proprietary  interest  of  the 
declarant."^**  The  ground  of  this  exception  is 
the  extreme  improbability  of  falsehood  in 
declarations  made  under  such  circumstances ; 
for  as  men  usually  have  such  regard  for  their 
own  interests  as  not  to  make  any  statements 
prejudicial  to  them  about  matters  within 
their  own  knowledge,  unless  they  are  true,  the 

plemented  by  his  oath,  as  above  stated,  they  may  also 
be  offered  in  evidence  in  actions  brought  by  his  execu- 
tor, administrator  or  guardian,  for  work  done  or 
goods  delivered  by  said  deceased  or  insane  person, 
upon  such  executor,  administrator  or  guardian  mak- 
ing oath  that  such  books  came  to  his  hands  as  the 
genuine  and  only  books  of  account  of  said  deceased  or 
insane  person,  and.  tliat  to  the  best  of  his  knowledge 
and  belief  the  entries  are  original  and  contempora- 
neous with  the  fact,  and  the  debt  unpaid,  and  also  fur- 
nishing proof  that  such  entries  are  in  the  handwriting 
of  said  deceased  or  insane  person.  A  full  collection 
of  decisions  relative  to  the  admissibility  in  evidence  of 
books,  reports  and  memoranda  made  or  authorized  by 
the  party  seeking  to  introduce  them,  will  be  found  in 
the  note  on  page  891  of  Vol.  127,  Am.  State  Ee- 
ports  under  the  case  of  Eureka  Mining  Co.  v.  Bullion 
Mining  Co.,  32  Utah,  736  there  reported. 

T^^ste.  Dig.,  art.  28;  1  Gr.  Ev.,  §§  147-155;  Tay. 
Ev.,  §§668-698;  Higham  v.  Ridgway,  2  Sm.  Lead. 
Cas.,  7  Am.  Ed.,  p.  *330;  1  ElHott  Ev.,  §§  434-453. 


74  RELEVANCY  [PAET I 

fact  that  such  statements  are  not  admitted  in 
evidence  until  after  the  death  of  the  declar- 
ant is  considered  a  sufficient  guarantee  that 
they  were  not  made  for  any  fraudulent  pur- 
pose. There  is  this  difference  between  the 
declarations  admitted  under  this  exception, 
and  those  admitted  upon  the  ground  of  having 
been  made  in  the  ordinary  course  of  busi- 
ness :  that  while  the  latter,  as  we  have  seen, 
are  admissible  only  to  prove  facts  which  were 
necessary  to  the  performance  of  some  duty 
by  the  declarant,  declarations  against  the  in- 
terest of  the  declarant  are  received  in  evi- 
dence of  all  matters  that  form  part  of  such 
declarations,  although  some  of  them  were  not, 
in  themselves,  against  his  interest.  Thus, 
where  A.,  B.  and  C.  had  made  a  joint  and  sev- 
eral promissory  note  for  £300,  and  a  partial 
payment  had  been  made  by  A.,  which  was  in- 
dorsed by  the  payee  upon  the  note  in  these 
terms:  ''Received  of  A.  the  sum  of  £280,  on 
account  of  the  within  note,  the  £300  having 
been  originally  advanced  to  C.,"the  court 
held,  in  an  action  brought  by  A.  to 
recover  contribution  from  B.  as  a  co-surety, 
that,  the  payee  being  dead,  his  indorse- 
ment was  admissible  to  prove  the  whole 
statement  contained  in  it,  and  was  there- 
fore   evidence    not    only    of    the    payment 


CHAP.  Il]    DECLARATIONS    AGAINST    INTEREST  75 

of  A.,  but  also  of  the  fact  that  C.  was 
the  principal  debtor.'^'^  But  statements  as  to 
entirely  independent  matters  are  not  evidence 
simply  because  made  at  the  same  time  and 
place  with  a  declaration  against  interest,  un- 
less connected  with  it  by  being  referred  to  in 
it,  or  by  being  necessary  to  explain  it ;  thus, 
in  an  account  rendered  by  a  steward,  since  de- 
ceased, containing  on  one  side  entries  charg- 
ing himself  with  the  receipt  of  moneys,  and 
on  the  other  side  items  discharging  him,  by 
showing  how  the  moneys  received  had  been 
disbursed,  the  discharging  entries  will  not  be 
admissible  in  evidence,  unless  they  are  nec- 
essary to  explain  the  charging  entries,  or  are 
expressly  referred  to  by  themJ^  The  term 
''declaration,"  as  applied  to  this  exception, 
embraces  all  statements,  verbal  or  written, 
whether  made  at  the  time  of  the  fact  declared, 
or  on  a  subsequent  day,  provided  that  they 
were  against  the  pecuniary  or  proprietary  in- 
terest of  the  declarant  at  the  time  when 
made ;  '^'^  hence  the  indorsement  of  a  partial 
payment  upon  an  instrument  barred  by  the 
statute  of  limitations  does  not  come  within 

'«  Davies  v.  Humphreys,  6  M.  &  W.,  153,  166. 
76  Doe  V.  Beviss,  7  C.  B.,  456. 
T'  Tay.  Ev.,  §  673. 


76  RELEVANCY  [PART  I 

the  rule,  unless  shown  to  have  been  made  be- 
fore the  statutory  period  had  elapsed,  since 
the  receipt  of  money  by  the  payee  after  that 
time  would  then  operate  in  favor  of  his  pro- 
prietary interest  by  removing  the  bar  of  the 
statute  which  had  already  attached  J*  This 
exception  is  most  frequently  exemplified  by 
entries  in  books  of  account,  which  either 
charge  the  party  making  them  with  the  re- 
ceipt of  money  on  account  of  a  third  person, 
or  acknowledge  the  payment  of  money  due 
to  himself;  and  the  weight  of  authority  now 
seems  to  support  the  proposition  that  entries 
of  the  latter  class  are  admissible,  even  in 
cases  where  they  are  the  only  evidence  of  the 
charge  of  which  they  show  the  subsequent 
liquidation.'^^ 

§  47.  (5)  Declarations  of  testator  as  to 
contents  of  his  will. — Declarations  made  by  a 
testator  as  to  the  contents  of  his  will  have 
been  held  in  the  event  of  the  loss  of  such  will, 
admissible  in  evidence  to  prove  its  contents. 

■^8  Id.,  §§693-696;  1  Gr.  Ev.,  §§131,  122;  Alle- 
gheny Co.  V.  Nelson,  25  Pa.  St.,  332,  334;  Roseboom 
V.  Billington,  17  Johns.,  182;  Burgoon  v.  Bixler,  55 
Md.,  384,  392;  39  Am.  R.,  418. 

79  1  Gr.  Ev.,  §  151;  Tay.  Ev.,  §§  675,  676;  Taylor 
V.  Withara,  L.  R.,  3  Ch.  Div.,  605. 


CHAP.  II 1  testator's   DECLARATIONS  77 

This  exception,  like  the  preceding  one,  seems 
to  have  been  allowed  upon  the  ground  of  the 
extreme  improbability  of  falsehood;  since 
the  testator,  having  an  absolute  right  to 
change  his  will  as  often  as  he  pleased  during 
his  life-time,  could  hardly  be  supposed  to 
have  any  object  in  stating  its  contents  to  be 
other  than  they  actually  were.®^ 

§  48.  (6)  Declarations  as  to  any  public  or 
general  right  or  custom.— Declarations  as  to 
the  existence  of  any  public  or  general  right 
or  custom,  or  matter  of  public  or  general  in- 
terest, made  by  persons  who  are  shown  to 
the  satisfaction  of  the  judge,  or  appear  from 
the  circumstances  of  their  statements,  to  have 
had  competent  means  of  knowledge,  are  ad- 
missible to  prove  the  existence  of  such  right, 
custom  or  matter,  provided  they  were  made 
before  any  controversy  arose  touching  the 

80  Ste.  Dig.,  art.  29 ;  1  Whar.  Ev.,  §  139 ;  Sugden  v. 
St.  Leonards,  L.  R.,  1  P.  D.  (C.  A.),  154;  Schouler 
on  Wills,  §  403 ;  Matter  of  Page,  118  III,  576 ;  8  N.  E., 
852;  59  Am.  E.,  395,  and  note;  Foster's  Appeal,  87 
Pa.  St.,  67;  30  Am.  R.,  340;  Pickens  v.  Davis,  134 
Mass.,  252 ;  45  Am.  E.,  322 ;  contra,  Throckmorton  v. 
Holt,  180  U.  S.,  552,  576,  and  see  3  Wigmore  Ev., 
§  1736 ;  but  see  1  Elliott  Ev.,  §  533. 


78  RELEVANCY  [I'ART  I 

matter  to  which  they  relate.^ ^  This  exception 
is  allowed  upon  the  ground  of  necessity,  for 
without  it  there  would  ordinarily  be  no  meth- 
od whatever  of  proving  the  existence  of  any 
such  public  or  general  right  or  custom  (such 
as  a  highway  or  right  of  ferry,  for  example), 
at  a  period  anterior  to  the  memory  of  living 
witnesses.  The  restriction  that  the  declara- 
tions must  have  been  made  before  any  con- 
troversy arose  upon  the  subject,  is  imposed 
for  the  reason  that  such  declarations  are  only 
admitted  at  all  upon  the  ground  that  they  are 
the  natural  effusions  of  a  party  who  is  pre- 
sumed to  know  the  truth,  and  to  speak  it,  up- 
on an  occasion  when  his  mind  stands  in  an 
even  position,  without  any  temptation  to  ex- 
ceed or  fall  short  of  the  truth.  But  no  man 
is  presumed  to  be  thus  indifferent  in  regard 
to  matters  in  actual  controversy;  for  when 
the  contest  has  begun,  people  generally  take 
part  on  one  side  or  the  other,  and,  even  when 
disposed  to  speak  the  truth,  they  are  very  apt 
to  see  facts  through  a  distorting  medium.^^ 
If  the  right,  custom  or  matter  to  be  proved 

81  Ste.  Dig.,  art.  30;  1  Gr.  Ev.,  §§  127-140;  Tay. 
Ev.,  §§  607,  634;  1  Elliott  Ev.,  §  385. 

82  1  Gr.  Ev.,  §  131;  1  Whar.  Ev.,  §  185;  Ellicott  v. 
Pearl,  10  Pet.,  412 ;  1  Elliott  Ev.,  §  386. 


CHAP.  Il]  PEDIGREE  79 

be  public,  i.  e.,  one  which  concerns  every  mem- 
ber of  the  state,  every  person  is  presumed 
to  have  had  some  knowledge  as  to  whether 
it  existed  during  his  own  life-time;  but  if  it 
be  only  general,  i.  e.,  one  in  which  only  a  por- 
tion or  class  of  the  community  are  interested, 
such  knowledge  will  not  be  presumed  unless 
the  declarant  is  shown  to  have  belonged  to  the 
portion  or  class  of  the  community  so  inter- 
ested.^^ 

§49.  (7)  Declarations  as  to  matters  of 
pedigree.— Declarations  relating  to  matters 
of  pedigree,  which  term  embraces  not  only 
general  questions  of  descent  and  relationship, 
but  also  such  particular  facts  of  family  his- 
tory as  births,  marriages  and  deaths,  the  cir- 
cumstances immediately  connected  with  their 
occurrence,  the  times,  either  definite  or  rela- 
tive, at  which  they  happened,  legitimacy  and 
the  contrary,  are  admitted  in  evidence  to 
prove  such  matters,  when  such  declarations 
were  made  before  the  question  in  relation  to 
which  they  are  proved  had  arisen,  and  by  a 
declarant  shown  either  to  have  been  himself 
legitimately  related  by  blood,  or  to  have  been 

*8  Declarations  as  to  ancient  boundary  lines,  held 
to  come  within  this  class  in  Maryland ;  Cadwallader 
V.  Price,  111  Md.,  310,  315;  75  A.,  273, 


80  RELEVANCY  [PART I 

married  to  some  one  so  related  to  the  person 
referred  to  by  them.  This  exception,  like  the 
preceding  one,  has  been  recognized  upon  the 
ground  of  necessity,  since  tradition  is  often 
the  sole  method  by  which  proof  of  matters  of 
pedigree  can  be  obtained,  while  the  limita- 
tions to  which  it  is  subjected  give  an  excellent 
illustration  of  the  third  great  distinguishing 
principle  of  the  Englsh  law  of  evidence  (the 
other  two  being  the  exclusion  of  res  inter 
alios  and  of  hearsay),  that  all  facts  must  be 
proved,  if  at  all,  by  the  best  kind  of  evidence 
of  which  they  are  susceptible.  As  the  mem- 
bers of  a  family  are  always  those  most  likely 
to  be  best  acquainted  with  the  nature  of  the 
ties  of  relationship  by  which  they  are  united 
to  each  other,  and  to  have  the  fullest  infor- 
mation in  regard  to  such  matters  of  family 
history,  the  declarations  admitted  for  the 
purpose  of  establishing  such  facts  are  re- 
stricted to  the  statements  of  blood  relations, 
or  persons  who  have  become  members  of  the 
family  by  marriage  with  one  so  related  to 
it.^"^  Upon  the  same  principle,  such  declara- 
tions, to  be  competent  evidence,  must  have 

84Ste.  Dig.,  art.  31;  1  Gr.  Ev.,  §§  103-106;  Abb. 
Tr.  Ev.,  Ch.  v.,  34-42;  Tay.  Ev.,  §§  635,  657;  Stein 
V.  Bowman,  13  Pet,  220 ;  Ellicott  v.  Pearl,  10  Pet., 


CHAP.  Il]  PEDIGREE  81 

been  made  either  from  the  personal  knowl- 
edge of  the  declarant,  or  from  information 
derived  through  other  persons  whose  decla- 
rations would,  on  acount  of  the  relationship 
in  which  they  stood  towards  the  family,  be 
equally  admissible  with  his  own.^^  In  this 
case  also,  as  with  declarations  offered  under 
the  last  preceding  exception,  relating  to  mat- 
ters of  public  or  general  interest,  and  for  the 
same  reason,  the  declarations  offered  in  evi- 
dence must  be  shown  to  have  been  made  be- 
fore any  controversy  had  actually  arisen  over 
the  matter  to  which  they  relate.^^  All  decla- 
rations made  after  the  controversy  began  are 
rigidly  excluded,  even  though  the  declarant 
did  not  know  of  such  controversy  at  the  time 
he  made  them;  but  the  fact  that  they  may 
have  been  made  for  the  purpose  of  preventing 

412,  434;  Jones  v.  Jones,  36  Md.,  447;  11  Am.  R., 
505 ;  Jewell  v.  Jewell,  1  How.,  219,  231. 

85  Davies  v.  Lowoides,  6  M.  &  G.,  527;  Elliott  v. 
Piersoll,  1  Pet.,  328,  337;  Secrist  v.  Green,  3  Wall., 
744;  Gaines  v.  New  Orleans,  6  Wall,  642,  699;  Crau- 
furd  V.  Blackburn.  17  Md.,  49,  54 ;  77  Am.  D.,  323. 

^^  Berkley  Peerage  Case,  4  Camp.,  401-407 ;  Stein 
V.  Bowman,  13  Pet.,  209,  220 ;  Ellicott  v.  Pearl,  10 
Pet.,  412,  434;  Craufurd  v.  Blackburn,  17  Md.,  49, 
54;  77  Am.  D.,  323. 


82  RELEVANCY  [PART  I 

such  controversy  from  arising  does  not  ren- 
der them  inadmissible.  Such  declarations 
may  be  either  verbal  or  written,  and  when 
made  in  the  form  of  entries  in  a  Bible  or  Tes- 
tament, shown  to  have  been  the  family  Bible 
or  Testament,  they  are  admitted  without 
proof  that  they  were  made  by  a  relative ;  for 
as  this  book  is  the  ordinary  register  of  fam- 
ilies, and  usually  accessible  to  all  its  members, 
the  presumption  is  that  the  whole  family  have 
more  or  less  adopted  the  entries  contained 
in  it.  So,  also,  an  inscription  on  a  tombstone 
is  admitted  without  proof  that  it  was  made 
by  the  direction  of  a  relative,  it  being  pre- 
sumed that  the  family  would  not  permit  an 
erroneous  inscription  to  remain.  But  no 
other  entries  or  inscriptions  are  admitted  in 
evidence  without  some  proof  of  their  having 
been  made  by  or  under  direction  of  some  de- 
ceased member  of  the  family,  or  else  of  their 
having  been  so  preserved  and  treated  in  the 
family  as  to  give  it  the  character  of  a  declara- 
tion by  the  family  or  some  of  its  members.^''^ 

87  Abb.  Tr.  Ev.,  Ch.  V,  36 ;  Tay  Ev.,  §  652 ;  Chap- 
man V.  Chapman,  2  Conn.,  347 ;  7  Am,  D.,  297 ;  Lewis 
V.  Marshall,  5  Pet.,  470,  476 ;  N".  Brookfield  v.  War- 
ren, 16  Gray,  174;  as  to  proof  of  age.  Grand  Lodge  v. 
Bartes,  69  Xeb.,  601 ;  98  X.  W.,  715 ;  111  Am.  St.  R., 
577,  note. 


CHAP.  Il]  OPINIONS  83 

§  50.    Opinion  excluded  except  in  a  few 

cases.— Similar  to  the  rule  excluding  hearsay 
is  that  which  declares  that  the  fact  of  any  per- 
son being  of  opinion  that  any  fact  in  issue,  or 
relevant  thereto,  does  or  does  not  exist,  is  ir- 
relevant to  prove  its  existence  or  the  con- 
trary, excepting  in  a  few  cases  which  will  be 
considered  presently.  The  theory  of  this  rule 
is,  that  so  far  as  such  an  opinion  may  be 
founded  on  no  evidence  at  all,  or  on  illegal 
evidence,  no  weight  could  be  given  to  it  what- 
ever, without  practically  nullifying  the  rules 
of  law  excluding  irrelevant  matters  and  deriv- 
ative evidence,  and  that  so  far  as  it  may  be 
founded  on  legal  evidence,  it  is  inferior 
in  character  to  the  original  evidence  upon 
which  it  is  founded,  which  should  itself 
be  laid  before  the  jury  (or  court,  as  the  case 
may  be),  whom  the  law  presumes  to  be,  under 
ordinary  circumstances  at  least,  equally  cap- 
able with  the  witnesses  of  drawing  from  it 
any  inferences  that  justice  may  require.^^ 
The  exceptions  to  this  rule  will  be  found  to 
consist  of  those  few  cases  where  the  law  does 
not  presume  the  jury  or  court  to  be  equally 
capable  with  the  witness  of  drawing  correct 

88  Best  Ev.,  §  511 ;  1  Elhott  Ev.,  672. 


84  RELEVANCY  [PAET  1 

inferences  from  the  facts  upon  which  his 
opinion  is  founded.^^ 

§  51.  Opinions  formed  from  personal  ob- 
servation admissible  when  the  best  evidence 
that  the  nature  of  the  case  admits  of.— The 
first  exception  embraces  all  those  cases  in 
which  the  opinion  of  the  witness  has  been 
formed  by  personal  observation  of  facts  or 
phenomena  so  numerous  or  so  evanescent 
that  they  cannot  be  stated  or  described  in 
such  language  as  will  enable  persons  not  eye- 
witnesses to  form  an  accurate  judgment  in  re- 
gard to  them,  and  as  to  which,  therefore,  no 
better  evidence  than  such  an  opinion  can  be 
obtained.^^  Hence  witnesses  have  been  al- 
lowed to  testify  as  to  their  opinion,  upon 
questions  of  personal  identity ;  as  to  whether 
two  persons  were  attached  to  each  other;  as 
to  whether  a  person  was  intoxicated;  as  to 
whether  a  person  was  of  a  certain  age ;  as  to 

89  Best  Ev.,  §  513;  1  Elliott  Ev.,  675. 

90  Best  Ev.,  §  517 ;  1  Whar.  Ev.,  §§  509-513 ;  1  El- 
liott Ev.,  §  675 ;  Hardy  v.  Merrill,  56  N.  H.,  227, 
241;  22  Am.  R.,  441;  Sydleman  v.  Beekwith,  43 
Conn.,  9,  11;  De  Witt  v.  Barley,  17  N.  Y.,  340; 
Com.  V.  Sturtevant,  117  Mass.,  122,  133 ;  19  Am.  R., 
401 ;  Hopt  V.  Utah,  120  U.  S.,  430,  437 ;  Ryder  v. 
State,  100  Ga.,  528 ;  28  S.  E.,  246;  38  L.  R.  A.,  721, 
note. 


CHAP.  Il]  ATTESTING   WITNESSES  85 

whether  a  person  was  sane  or  insane,  and 
many  other  questions  of  a  similar  character. 
In  all  such  cases,  however,  the  witness,  before 
being  allowed  to  express  his  opinion,  is  re- 
quired to  state  the  circumstances  under  which 
he  observed  the  facts  upon  which  his  opinion 
has  been  founded,  and  also  to  state,  so  far  as 
possible,  what  facts  he  thus  observed ;  and  it 
is  then  for  the  judge  to  decide  from  that 
statement,  whether,  under  all  the  circum- 
stances of  the  case,  an  opinion  formed  upon 
such  observation  is  competent  evidence  un- 
der this  exception;  but  the  subscribing  wit- 
nesses to  a  will  may  state  the  opinions  which 
they  formed  at  the  time  of  its  execution,  as 
to  the  testator's  mental  capacity,  without 
first  stating  the  facts  upon  which  that  opinion 
was  formed.^^  This  distinction,  allowing  the 
subscribing  witnesses  to  a  will  a  peculiar 
privilege,  in  giving  their  mere  naked  opinion 
in  relation  to  the  sanity  of  the  testator  at  the 
time  of  its  execution,  and  denying  that  privi- 
lege to  others,  is  considered  by  Judge  Red- 
field  to  be  practically  and  in  principle  wholly 

91  Abb.  Tr.  Ev.,  Ch.  V,  64;  1  Red!  Wills,  pp.  *139, 
144;  Conn.  Mut.  Life  Ins.  Co.  v.  Lathrop,  111  U.  S., 
612,  620;  Robinson  v.  Adams,  62  Me.,  219;  16  Am. 
E.,  473,  486. 


86  RELEVANCY  [PART  I 

groundless,  and  an  absurd  one  in  itself  .^^  He 
considers  it  to  be  based  upon  the  fact  that,  as 
the  statutes  prescribing  the  method  of  exe- 
cuting wills  generally  require  that  they 
should  be  attested  by  credible  or  competent 
witnesses,  it  is  not  competent  for  the  courts 
to  say,  after  the  statute  has  defined  the 
requisites  of  a  witness,  that  he  is  not  to  be 
regarded  as  competent  to  testify  to  every 
point  directly  involved  in  the  issue,  whether 
the  paper  presented  for  probate  be  the  will  of 
the  alleged  testator  or  not.^^  Indeed,  it  ought 
always  to  be  assumed  that  the  subscribing 
witnesses  to  a  will  did  regard  the  testator 
as  of  sound  mind  at  the  time  of  executing  the 
will,  or  they  would  not  have  countenanced  the 
act  by  becoming  witnesses,  and  therefore 
they  can  only  say  that  he  appeared  sane,  as 
they  noticed  nothing  to  the  contrary ;  so  that 
the  idea  of  requiring  them  to  state  facts  in 
confirmation  of  such  a  mere  negative  opinion 
would  be  preposterous.®^  Practically,  how- 
ever, this  distinction  amounts  to  very  little, 
for  all  the  facts  and  circumstances  seen  or 
known  by  the  subscribing  witness  at  the  time 

62  1  Eedf.  on  Wills,  p.  *139 
S3  Id.,  p.  *145,  note  25. 
»4  Id.,  p,  *H4,  note  22. 


CHAP.  II ]  OPINIOX    OF    EXPERTS  87 

of  the  execution,  may  always  be  brought  out 
either  on  direct  or  cross-examination,  and  up- 
on them  will  depend  in  a  great  measure  what- 
ever weight  is  given  to  his  opinion. 

§  52.  Opinions  of  experts  on  matters  re- 
quiring special  study  or  experience  admis- 
sible.—Whenever  there  is  a  question  as  to 
any  point  of  science  or  art,  or  other  matter  re- 
quiring a  course  of  special  study  or  experi- 
ence in  order  to  the  attainment  of  that  degree 
of  knowledge,  without  which  persons  are  un- 
likely to  prove  capable  of  forming  a  correct 
judgment  upon  it,  the  opinions  upon  that 
point,  of  witnesses  specially  skilled  or  learned 
in  any  such  matter,  are  admitted  in  evidence 
for  the  purpose  of  aiding  the  jury  (or  court) 
to  arrive  at  a  correct  conclusion  from  the 
facts  established  by  the  testimony .^^  Such 
witnesses  are  usually  called  experts,  and 
whenever  it  is  proposed  to  examine  any  wit- 
ness as  an  expert,  the  judge  must  first  decide, 

95  Ste.  Dig.,  art.  49 ;  Best  Ev.,  §  513 ;  1  Gr.  Ev., 
§§440,  440a;  Tay.  Ev.,  §§  1416-1425;  1  Sm.  Lead. 
Cas.,  Carter  v.  Boehm,  7th  Am.  ed.,  pp.  *618,  *628, 
*644;  Milwaukee,  etc.,  Ey.  Co.  v.  Kellogg,  94  U.  S., 
469,  472 ;  Hammond  v.  Woodman,  41  Me.,  177 ;  66 
Am.,  D.,  219,  and  note;  Stumore  v.  Shaw,  68  Md.,  11 ; 
11  A.,  360;  6  Am.  St.  R,  412;  2  Elliott  Ev.,  §  1025- 
1047. 


88  RELEVANCY  [PART  1 

as  a  preliminary  question,  whether  or  not  his 
skill  or  learning  in  the  matter  upon  which 
his  opinion  is  to  be  asked  is  sufficient  to  en- 
title him  to  be  regarded  as  an  expert.^®  Wit- 
nesses thus  examined  as  experts  are  not  per- 
mitted to  usurp  the  functions  of  the  jury  by 
giving  their  opinions  as  to  the  general  merits 
of  the  cause,  but  are  only  allowed  to  state  the 
conclusions  which  their  skill  has  enabled  them 
to  draw  from  the  facts  within  their  own  per- 
sonal knowledge,  after  having  first  stated 
what  those  facts  are;  or  else  to  give  their 
opinion  upon  a  hypothetical  statement  of 
facts,  based  on  evidence  already  given  by 
other  witnesses.^'^  Thus,  when  the  question 
is  whether  the  death  of  a  certain  person  was 
caused  by  poison,  a  physician  examined  as  an 
expert  may  be  asked  as  to  what,  in  his  opin- 
ion, would  be  indicated  by  the  presence  of 

96  Ste.  Dig.,  art.  49 ;  Abb.  Tr.  Ev.,  Ch.  XIX,  22 ; 
Tay.  Ev.,  §48;  Bristow  v.  Sequeville,  6  Ex.,  275; 
Rowley  v.  L.  &  N.  W.  Ry.,  L.  R.,  8  Ex.,  221 ;  Tucker 
V.  Mass.  Cent.  Ry.,  118  Mass.,  547;  Del.  &  Ches.  St. 
Towboat  Co.  v.  Starrs,  69  Pa.  St.,  41 ;  Com.  v.  Sturte- 
vant,  117  Mass.,  122;  19  Am.  R.,  401. 

»7  1  Gr.  Ev.,  §  440;  Tay.  Ev.,  §  1421 ;  Abb.  Tr.  Ev., 
Ch.  V,  64;  Bradner  Ev.,  p.  371;  State  v.  Maier,  36 
W.  Va.,  757;  15  S.  E.,  991;  People  v.  McElvaine,  121 
N.  Y.,  250;  18  Am.  St.  R.,  820;  Meeker  v.  Meeker, 


CHAP,  ll]  OPINION    OF    EXPERTS  89 

symptoms  such  as  other  witnesses  have  tes- 
tified were  exhibited  by  the  deceased;  or,  if 
he  saw  the  deceased  himself,  he  may,  after  de- 
tailing the  symptoms  be  observed,  state  his 
opinion  as  to  the  cause  which  produced  them. 
So  where  the  question  is  as  to  the  unwritten 
law  of  any  foreign  country,  experts  who  in 
their  profession  are  acquainted  with  such 
law,  may  state  their  opinion  as  to  what  the 
law  of  that  country  would  be  upon  a  hypo- 
thetical state  of  facts,  all  of  which  are  sus- 
tained by  evidence  already  offered  in  the 
case ;  but  the  written  law  must  be  proved  by 
the  production  of  an  authenticated  copy  of 
the  statute  itself,  if  such  copy  can  be  ob- 
tained.^^  When  skilled  witnesses  are  called 
upon  as  experts  to  pronounce  their  opinions 
on  some  scientific  question,  they  may  refresh 
their  memory  by  referring  to  professional 
treatises.^^ 

74  Iowa,  353;  37  N.  W.,  773;  7  Am.  St.  E.,  489; 
Dexter  v.  Hall,  15  Wall.,  9,  26 ;  Quinn  v.  Higgins, 
63  Wis.,  664;  24  N.  W.,  482;  53  Am.  R.,  305. 

»8  1  Gr.  Ev.,  §  488 ;  Ennis  v.  Smith,  14  How.,  400, 
426;  Tay.  Ev.,  §1425;  Baltimore  &  Ohio  E.  E.  v. 
Glenn,  28  Md.,  287,  322;  92  Am.  D.,  688,  694. 

9«  Tay.  Ev.,  §  1423;  1  Whar.  Ev.,  §§  438,  666;  Ste. 
Dig.,  art.  136 ;  Eippon  v.  Bittel,  30  Wis.,  614 :  Harvey 


90  RELEVANCY  [PAET  I 

§53.    Opinion    as    to    handwriting.— The 

several  rules  regulating  the  admissibility  of 
the  opinions  of  witnesses  for  the  identifica- 
tion of  handwriting,  being  to  some  extent  ar- 
bitrary, and  by  no  means  uniform,  will  now 
be  stated  separately  for  convenience,  al- 
though in  strictness  they  might,  perhaps,  all 
be  properly  referred  to  one  or  other  of  the 
two  preceding  exceptions.  Thus,  under  the 
first  exception,  any  witness  acquainted  with 
the  handwriting  of  a  person  may  testify  as  to 
whether  or  not,  in  his  opinion,  a  writing  pro- 
duced in  evidence  was  written  by  such  per- 
son. The  acquaintance  with  a  person 's  hand- 
writing which  the  witness  must  possess  in  or- 
der to  be  competent  to  express  such  an  opin- 
ion, is  that  he  must  have  actually  seen  such 
person  write  (though  only  once,)  or  else  have 
received  writings  purporting  to  be  written  by 
such  person  in  answer  to  others  written  by 
himself,  or  under  his  authority,  and  ad- 
dressed to  such  person ;  or  else  have  writings 
purporting  to  have  been  written  by  that  per- 
son habitually  submitted  to  him  in  the  ordi- 
nary course  of  business.^ '^'^    Where  a  paper 

V.  state,  40  Ind.,  518 ;  Pierson  v.  Hoag,  47  Barb.,  223, 
246;  Hoffman  v.  Clack,  77  N.  C,  555. 

100  Ste.  Dig.,  art.  51;  1  Gr.  Ev.,  §  577;  Tay.  Ev.. 


CHAP.  Il]  HANDWRITING  91 

admitted  or  clearly  proved  to  be  genuine  is  al- 
ready in  evidence  for  some  other  purpose  in 
a  cause,  and  another  paper  pertinent  to  the 
issue,  and  alleged  to  be  in  the  same  hand- 
writing, is  offered  in  evidence,  it  is  well  set- 
tled that  the  jury  (or  court)  may  compare 
the  latter  with  the  former  ;^"^  but  upon  the 
question  as  to  whether  papers  not  otherwise 
in  the  case  may  be  received  and  proved  for 
the  purpose  of  comparison,  and  whether, 
where  such  comparison  is  allowable  by  the 
jury,  the  testimony  of  experts  in  regard  to  it 
is  admissible,  there  is  much  conflict  in  the  de- 
cisions of  the  courts  of  the  different  states 
of  the  Union;  but  the  weight  of  American 
authority  appears  to  be  against  the  admis- 
sion of  papers  offered  merely  for  the  purpose 
of  comparison,  and  in  favor  of  receiving  the 
opinion  of  experts  upon  the  point  as  to  wheth- 
er any  two  or  more  papers,  properly  in  e^d- 
dence,  were  written  by  the  same  person.^^^ 

§§  1863-1867;  Doe  v.  Sackermore,  5  A.  &  E.,  705; 
Rogers  v.  Eitter,  12  Wall.,  317,  320;  Hammond  Case, 
2  Gr.,  33 ;  11  Am.  D.,  38.  But  see  Reese  v.  Reese,  90 
Pa.  St.,  89 ;  35  Am.  R.,  634. 

"1  1  Gr.  Ev.,  §  578;  2  ElUott  Ev.,  §  1105. 

102  See  1  Gr.  Ev.,  §  581 ;  1  Whar.  Ev.,  §  712 ;  and 
Tome  V.  Parkersburg  Br.  R.  R.  Co.,  39  Md.,  36,  where 
the  whole  subject  is  discussed;  also  Rogers  on  Expert 


92  EELEVANCY  [PART  I 

But  where  a  writing  to  be  proved  is  of  such 
antiquity  that  living  witnesses  cannot  be  had, 
and  yet  is  not  old  enough  to  prove  itself,  ex- 
perts may  always  compare  it  with  other  docu- 
ments admitted  to  be  genuine,  or  proved  to 
have  been  respected,  treated  and  acted  upon 
as  such  by  all  parties,  and  may  give  their 
opinion  concerning  the  genuineness  of  the 
writing  in  question,  such  opinions  being  the 
best  evidence  attainable  under  the  circum- 
stances.^''^ 

Testimony,  1897,  pp.  285-347,  and  Lawson  on  Expert 
and  Opinion  Evidence  (1883),  pp.  375-488,  which 
gives  the  statute  law  and  decisions  in  the  several  states 
upon  the  subject  very  fully.  In  England,  by  statute 
(17  and  18  Vic,  c.  125,  §  27,  and  28  Vic,  c  18,  §  8), 
it  is  permitted  to  prove  a  disputed  handwriting  by 
comparison  made  by  witnesses  with  any  other  writing 
introduced  into  the  case  for  that  purpose,  which  is 
first  proved  to  the  satisfaction  of  the  judge  to  be  gen- 
uine ;  and  substantially  the  same  rule  has  been  adopted 
by  statute  in  the  states  of  Georgia,  Iowa,  Maryland, 
Xew  Jersey  and  Texas.  Miles  v.  Loomis,  75  N.  Y., 
288;  31  Am.  E.,  474;  White  Sewing  Machine  Co.  v. 
Gordon,  124  Ind.,  495;  24  N".  E.,  1053;  19  Am.  St. 
R.,  109 ;  Gaunt  v.  Harkness,  53  Kan.,  405 ;  86  P., 
739 ;  42  Am.  St.  R.,  297. 

^03  1  Gr.  Ev.,  §578;  Best  on  Ev.,  §§240-242; 
Strother  v.  Lucas,  6  Pet.,  763,  767;  Clark  v.  Wyatt, 
15  Ind.,  271;  77  Am.  D.,  90. 


PART  n. 

ON  PROOF. 


CHAPTER  I. 

ALL  FACTS  MUST  BE  PEOVED  UNLESS  JUDICLULrLY 
NOTICED   OR   ADMITTED. 

§54.  Facts  must  be  proven  by  the  best 
kind  of  evidence  attainable.— Having  con- 
sidered the  rules  by  which  the  relevancy  of 
facts  is  determined,  we  now  come  to  those 
prescribing  the  kinds  of  proof  by  which  the 
existence  of  such  relevant  facts  may  be  estab- 
lished. These  latter  may  all  be  said  to  be 
nothing  more  than  applications  of  that  dis- 
tinguishing principle  of  the  English  law  of 
evidence,  already  mentioned,  which  requires 
that  every  fact  necessary  to  be  proved  shall 
be  proved  by  the  best  kind  of  evidence  attain- 
able. This  rule  relates  to  the  quality  of  evi- 
dence, and  not  to  its  quantity,  and  it  operates 
to  exclude  only  that  evidence  which  itself  in- 
dicates the  existence  of  more  original  sources 

98 


94  ON    PROOF  f  PART  II 

of  information ;  ^  the  true  meaning  of  the  rule 
being,  as  stated  by  Lord  Chief  Baron  Gilbert, 
''that  no  such  evidence  shall  be  brought 
which,  ex  naturd  rei,  supposes  still  a  greater 
evidence  behind  in  the  party's  own  posses- 
sion and  power.  "^  Thus,  the  offer  to  prove 
the  contents  of  a  writing  by  means  of  a  copy, 
or  by  mere  oral  evidence,  assumes  the  exist- 
ence of  a  more  original  source  of  informa- 
tion, to  wit,  the  writing  itself,  and  therefore 
the  inferior  evidence  is  excluded,  unless  it  be 
first  shown  that  the  writing  itself  is  not  in  ex- 
istence or  is  unattainable ;  but  where  there  is 
no  substitution  of  derivative  for  original  evi- 
dence, but  merely  a  selection  of  weaker  in- 
stead of  stronger  proofs  of  the  same  degree, 
or  an  omission  to  supply  all  the  proofs  cap- 
able of  being  produced,  the  rule  is  not  in- 
fringed.2 

§  55.  Courts  disregard  all  facts  not  proven 
in  the  cause  on  trial,  except  in  two  cases.— As 
already  stated,  it  is  the  general  rule  that 
courts,  in  deciding  issues  of  fact,  are  to  be 
governed  solely  by  such  evidence  as  may  have 

1  1  Gr.  Ev.,  §  82 ;  1  Starkie  Ev.,  p.  641 ;  Best  on 
Ev.,  §§  87-90;  1  Elliott  Ev.,  §  205. 

2  Gilb.  Ev.,  16,  4th  ed. 

8  1  Gr.  Ev.,  §  82 ;  Tay.  Ev.,  §§  391,  393, 


CHAP.  l]  JUDICIAL    NOTICE  95 

been  produced  before  tliem  by  the  respective 
parties  to  the  proceeding,  and  should  entirely 
disregard  all  facts  not  regularly  proven  in 
the  cause ;  but  to  this  rule  there  are  two  excep- 
tions, the  first  being  as  to  certain  facts  of 
which  the  courts  take  judicial  notice,  or 
recognize  as  within  their  own  knowledge, 
without  requiring  any  extrinsic  proof  there- 
of ;  and  the  second  being  as  to  such  facts  as 
are  admitted  by  both  sides. 

§  56.  Facts  judicially  noticed.— The  courts 
take  judicial  notice  of  certain  facts  upon  one 
or  other  of  the  two  following  grounds :  either 
because  the  law  makes  it  the  special  duty  of 
the  court  to  know  them ;  or  else  for  the  reason 
that  they  are  recognized  to  be  of  such  uni- 
versal notoriety  within  the  limits  of  its  juris- 
diction as  to  leave  no  room  for  any  dispute 
about  them.  To  require  technical  proof  of 
such  facts  would  be  wasting  time  to  no  pur- 
pose and  subjecting  suitors  to  useless  trouble 
and  expense.^ 

I.    The  first  class  embraces : 

(a)  All  public  laws  by  which  the  particular 

4  See  1  Gr.  Ev.,  §§  4-6a;  1  Whar.  Ev.,  §§  276-340; 
Bliss  on  Code  PL,  §  177.  See  full  note  on  p.  20  of 
Vol.  124  of  Am.  St.  Eep.,  under  case  of  Green  v. 
Lineville  Drug  Co.,  150  Ala.,  112 


96  ON    PROOF  [part  II 

court  is  bound  to  be  controlled  in  rendering 
its  decisions ;  for  the  court  must  be  presumed 
to  know  these  laws,  as  otherwise  it  could  not 
apply  them  to  the  case  before  it.  They  include 
the  constitution,  public  statutes  and  treaties 
of  the  United  States  and  of  the  particular 
state  in  which  the  court  is  sitting,^  the  law 
of  nations,^  the  law  merchant,'^  the  common 
law,^  and  all  old  English  and  other  statutes 
which  are  in  force  in  said  states  in  so  far  as 
they  constitute  a  part  of  the  law  of  the  land 
within  the  jurisdiction  of  the  court.®  Inas- 
much as  the  courts  of  the  United  States  were 
created  by  congress  not  for  the  purpose  of 
administering  the  local  laws  of  a  single  state 
alone,  but  to  administer  the  laws  of  all  the 
states  in  the  Union,  they  take  judicial  notice 
of  all  such  laws  in  cases  to  which  they  respect- 
ively apply.^^     The  courts,  however,  do  not 

»  1  Gr.  Ev.,  §  4. 

«  The  Scotia,  14  Wall.,  170,  188. 

T  Brown  v.  Piper,  91  U.  S.,  37,  42 ;  Barnet  v.  Bran- 
dao,  6  M.  &  G.,  630,  665. 

8  Owen  V.  Boyle,  15  Me.,  147;  S.  C,  32  Am.  Dec, 
143 ;  1  Kent  Com.,  472. 

»  1  Kent  Com.,  473 ;  Chouteau  v.  Pierre,  9  Mo.,  3. 

10  Owings  V.  Hull,  9  Pet.,  607,  625 ;  R.  R.  Co.  v. 
Bk.  Ashland,  12  Wall.,  226. 


CHAP.  l]  JUDICIAL   NOTICE  97 

take  judicial  notice  of  the  laws  of  a  foreign 
country,  nor  do  the  courts  of  one  of  the 
United  States  take  judicial  notice  of  the 
laws  of  another  state,  for  they  are  un- 
der no  legal  obligation  to  administer  these 
laws;  and  whenever  they  do  adopt  them  as 
rules  of  decision  in  particular  cases  arising 
under  them,  they  only  do  so  from  a  spirit  of 
comity.^^  Neither  do  the  courts  notice  judi- 
cially private  acts  of  legislation  such  as  legis- 
lative grants  and  charters,^ ^  for  these  are  re- 
garded as  nothing  more  than  contracts  be- 
tween the  state  in  its  sovereign  capacity  and 
individuals  or  corporations,^  ^  and  therefore 
must  be  proved  like  any  other  contracts. 

(b)  Matters  of  public  interest  which,  being 
recognized,  established  or  determined  by  the 
law  of  the  land,  must  be  considered  to  be  with- 
in the  knowledge  of  all  persons,  and  especial- 
ly those  holding  official  positions  under  the 
government,  and  thereby  constituting  a  part 

11  Canal  Co.  v.  B.  &  0.  E.  R.  Co.,  4  G.  &  J.,  1,  63 ; 
1  Gr.  Ev.,  §§  486,  489. 

12  First  Nat.  Bk.  Clarion  v.  Ginber,  87  Pa.  St., 
468;  S.  C,  30  Am.  Rep.,  378. 

13  Trustees  Dartmouth  Coll.  v.  Woodward,  4 
Wheat.,  518,  643,  656. 


98  ox  PEOOF  [part  II 

of  it.^^  These  have  been  held  in  the  United 
States  to  include : 

(1)  The  existence  and  titles  of  all  the  sov- 
ereign powers  in  the  civilized  world  which  are 
recognized  by  the  government  of  the  United 
States,  their  respective  flags  and  seals  of 
state,^^  and  also  the  public  acts  and  procla- 
mations and  public  authorized  agents  of  such 
powers  done,  made  and  appointed  to  carry  in- 
to effect  their  treaties  with  the  United 
States.i^ 

(2)  Foreign  admiralty  and  maritime 
courts,^'^  notaries^^  and  their  respective  seals, 
for  these  are  recognized  by  the  law  merchant. 

(3)  The  sittings  of  congress  and  also  of  the 
legislature  of  the  state  or  territory  where  the 
court  is  held,  their  established  and  usual 
course  of  procedure,  the  privileges  of  the 
members,  and  in  some  cases,  the  transactions 
on  the  journals.^® 

(4)  The  accession  of  the  chief  executive  of 

14  Bliss,  Code  PL,  §  192. 

iBU.  S.  V.  Palmer,  7  AVheat.,  610,  634;  Church  v. 
Hubbard,  2  Cr.,  187,  238;  1  Gr.  Ev.,  §  4. 
i«  U.  S.  V.  Eeynes,  9  How.,  127,  147. 
'^''  Croudson  v.  Leonard,  4  Cr.,  434. 
18  Nicholls  V.  Webb,  8  Wlieat.,  326,  333. 
i»  1  Gr.  Ev.,  §  6 ;  Bliss  Code,  PL,  §  194. 


CHAP.  l]  JUDICIAL    NOTICE  99 

the  nation  and  of  the  state  or  territory  in 
which  the  court  is  held;  his  power  and  priv- 
ilegesi,  and  the  genuineness  of  his  signature  f^ 
the  heads  of  departments  and  principal  offi- 
cers of  state  ;2^''  the  public  seals  ;^^  the  elec- 
tion or  resignation  of  a  senator  of  the  United 
States;  the  appointment  of  a  cabinet  or  for- 
eign minister; 22  the  existence  of  all  courts 
of  the  United  States  and  all  courts  of  general 
jurisdiction  in  the  state  or  territory  where 
the  court  is  held,  and  the  extent  of  their  juris- 
diction; 23  also  the  existence,  jurisdiction  and 
practice  of  inferior  courts  of  said  state  or 
territory  in  so  far  as  established  by  its  law  f^ 
the  judges  and  seals  of  all  such  courts  and 
their  terms  so  far  as  the  same  are  regulated 

20  Hizer  v.  State,  12  Ind.,  30 ;  Lindsay  v.  Atty- 
Genl.,  33  Miss.,  508 ;  Jones  v.  Gale's  Ex'r,  4  Martin, 
635. 

2oa  York,  etc.,  R.  R.  Co.  v.  Williams,  17  How.,  30, 
41 ;  Bennett  v.  Tennessee,  Mart.  &  Yerg.,  133. 

2iDelafield  v.  Hand,  3  Johns.,  310,  314;  Den  v. 
Vreelandt,  2  Halst.,  553,  555. 

22Walden  v.  Canfield,  2  Rob.  La.  R.,  446,  469; 
Brown  v.  Piper,  91  U.  S.,  37,  42. 

23Dozier  v.  Joyce,  8  Port.  (Ala.),  303. 

24  Bliss  on  Code,  PI.,  §  196. 


100  ON    PROOF  [part  II 

by  public  law,^^  but  not  their  rules  of  court  ;^® 
the  United  States  niarshals,  sheriffs,  United 
States  and  state  district  attorneys  and  clerks 
of  court  holding  office  in  said  state  or  terri- 
tory, and  the  genuineness  of  their  respective 
signatures,  but  not  of  those  of  their  depu- 
ties.2' 

(5)  Public  proclamations  of  war  and 
peace  ^^  and  of  days  of  special  public  fasts 
and  thanksgiving ;  and  stated  days  of  general 
political  elections  ;2^^  the  legal  coinage, 
weights  and  measures  of  the  country ;  ^^  the 
territorial  extent  of  the  jurisdiction  and  sov- 
ereignty exercised  de  facto  by  the  United 
States  and  the  state  in  which  the  court  sits,^*^ 

25  Gilland  v.  Sellers,  2  Ohio  St.,  223,  226 ;  Lind- 
say V.  Wilhams,  17  Ala.,  229,  231;  Newell  v.  Newton, 
10  Pick.,  470,  472;  Tucker  v.  State,  11  Md.,  322,  329. 

26  Cherry  v.  Baker,  17  Md.,  75. 

27Ingraham  v.  State,  27  Ala.,  17,  20;  Major  v. 
State,  2  Sneed  (Tenn.),  11;  Ward  v.  Henry,  19  Wis., 
76;  S.  C,  88  Am.  Dec,  672. 

28  Armstrong  v.  U.  S.,  13  Wall.,  154,  156 ;  Dun- 
ning V.  New  Albany  &  Salem  R.  Co.,  2  Ind.,  437. 

28'^  State  V.  Minniek,  15  Iowa,  123. 

29  Hockin  v.  Cooke,  4  T.  R.,  314;  United  States  v. 
Burns,  5  McLean,  23,  30 ;  Daily  v.  State,  10  Ind.,  536. 

30  Gilbert  v.  Moline,  19  Iowa,  319. 


CHAP.  l]  JUDICIAL    NOTICE  101 

and  the  local  political  divisions  of  said  state 
into  counties,  cities,  townships,  school  dis- 
tricts, and  the  like,^^  and  their  relative  posi- 
tions, but  not  their  precise  boundaries  further 
than  described  in  public  statutes;  the  public 
surveys  and  legal  subdivisions  under  the 
public  law;  ^2  aj^i  the  courts  of  the 
United  States  take  special  notice  of  the 
ports  and  waters  of  the  United  States  where 
the  tide  ebbs  and  flows,  and  of  the  boundaries 
of  the  several  states  and  judicial  districts. ^'^ 
(c)  Matters  peculiarly  within  the  knowl- 
edge of  the  particular  court,  as  its  records, 
its  officers  and  their  deputies,^^  its  attor- 
neys,*^ and  the  signatures  of  such  officers, 
deputies  and  attorneys  in  all  their  official  or 
professional  acts ;  ^^  and  county  courts  gener- 
ally take  judicial  notice  of  the  justices  of  the 
peace  holding  office  in  the  counties  over  which 

31  Winnepiseogee  Lake  Co.  v.  Young,  40  N.  H.,  420, 
429;  Goodwin  v.  Appleton,  22  Me.,  453,  459;  State 
V.  Powers,  25  Conn.,  48. 

32  Vanderwerker  v.  People,  5  Wend.,  530 ;  Ham  v. 
Ham,  39  Me.,  263,  266. 

33  Brown  v.  Piper,  91  U.  S.,  37,  42. 

34  Nowell  V.  McHenry,  1  Mich.,  227. 

35  1  Chitty's  PI.,  220". 

38  State  V.  Postlewait,  14  Iowa,  446 ;  Masterson  v, 
Le  Claire,  4  Minn.,  163. 


102  ox    PROOF  [PABT II 

sucli  courts  respectively  have  jurisdiction 
and  of  the  genuineness  of  their  official  sig- 
natures.^'^ 

(d)  Matters  which  the  courts  are  directed 
by  statute  to  notice  judicially. 

(e)  Matters  which  take  place  in  the  actual 
presence  of  the  court. 

11.  The  second  class  of  facts  judicially  no- 
ticed embraces  all  matters  so  notorious  that 
they  may  be  fairly  considered  as  within  the 
common  knowledge  or  experience  of  all  per- 
sons of  ordinary  intelligence  and  education 
within  the  jurisdiction  of  the  court,  and  there- 
fore not  open  to  controversy.  This  class  has 
been  held  to  include. 

(1)  The  general  geographical  features  of 
the  country,  state  and  judicial  district  where 
the  court  is  held,  as  to  the  existence  and  loca- 
tion of  its  principal  mountains,  rivers  and 
cities, ^^  and  also  the  geographical  position 
and  distances  of  foreign  countries  and  cities 
in  so  far  as  the  same  are  matters  of  universal 
notoriety.^® 

37  Chambers  v.  People,  6  111.  (4  Scam.),  351. 

38  Mossman  v.  Forrest,  27  Ind.,  233,  236;  Winne- 
piseogee  Lake  Co.  v.  Young,  40  N.  H.,  420,  429. 

3»  Whitney  v.  Gauche,  11  La.  Ann.,  432;  Kichard- 
son  V.  Williams,  2  Porter  (Ala.),  239,  243. 


CHAP.  l]  JUDICIAL    XOTICE  103 

(2)  Any  matters  of  public  history  affect- 
ing the  whole  people,  and  also  public  matters 
affecting  the  national  government  or  that  of 
the  state,  district  or  county  where  the  court 
is  held.'^'^ 

(3)  All  things  which  must  have  happened 
according  to  the  course  of  nature,  as  the  or- 
dinary limitation  of  human  life  as  to  age,  the 
course  of  time  and  of  the  heavenly  bodies,  the 
mutations  of  the  seasons  and  their  general  re- 
lation to  the  maturity  of  crops.^^ 

(4)  The  ordinary  public  feasts  and  festi- 
vals ;^2  the  coincidence  of  days  of  the  week 
with  days  of  the  month.'* ^ 

(5)  The  meaning  of  words  in  the  vernacu- 
lar language,  but  not  of  catch-words,  techni- 
cal, local  or  slang  expressions.^^ 

40  Bank  of  Augusta  v.  Earle,  13  Peters,  490 ;  Ohio 
Life  Ins.  &  Tr.  Co.  v.  Debolt,  16  How.,  416,  435;  1 
Whar.  Ev.,  §  338 ;  Bliss,  Code  PI.,  §  190. 

-»!  Patterson  v.  McCausland,  3  Bland.  Chy.,  69; 
Floyd  V.  Johnson,  3  Litt.  (Ky.),  109,  113;  13  Am. 
Dec,  255;  Bryan  v.  Beckley,  6  id.,  91,  95;  Bowen  v. 
Bead,  103  Mass.,  46,  48. 

42  Sasscer  v.  Farmers'  Bank,  4  Md.,  409,  430, 

43  Allman  v.  Owen,  31  Ala.,  167,  171. 

44  Commonwealth  v.  Kneeland,  20  Pick.,  206,  216; 
Balto.  V.  State,  15  Md.,  276,  484. 


104  ON   PROOF  [part  II 

(6)  Such  ordinary  abbreviations  as  by 
common  use  may  be  regarded  as  universally 
understood,  as  abbreviations  of  Christian 
names,  and  the  like,'*^  but  not  those  which  are 
in  any  degree  doubtful  or  difficult  of  inter- 
pretation."*^ 

(7)  The  character  of  the  general  circulat- 
ing medium  and  the  public  language  in  ref- 
erence to  it,^^  but  not  the  current  value  of  the 
notes  of  a  bank  at  any  particular  time.^^ 

(8)  Other  matters  of  general  notoriety  as 
the  manner  in  which  railroad  business  is  con- 
ducted.^» 

If  the  judge 's  memory  be  at  fault,  or  if  he 
is  uncertain  in  reference  to  any  fact  which  he 
is  called  upon  to  notice  judicially,  he  may  re- 
fer to  any  person  or  to  any  document  or  book 
of  reference  that  he  deems  worthy  of  confi- 
dence in  order  to  satisfy  himself  in  relation 

«  Stephen  v.  State,  11  Geo.,  325,  240;  Mosely  v. 
Masten,  37  Ala.,  216;  Gordon  v.  Holliday,  1  Wash. 
C.  C,  285,  289. 

•«6  Ellis  V.  Park,  8  Texas,  205. 

^■^  Lampton  v.  Haggard,  3  Mon.,  149. 

*8  Feemster  v.  Kingo,  5  Mon.,  336 ;  Modawell  v. 
Holmes,  40  Ala.,  391. 

49  Cleveland  R.  R.  Co.  v.  Jenkins,  174  111.,  398 ; 
51  N.  E.,  811;  66  Am.  St.  R.,  294;  62  L.  R.  A.,  992. 


CHAP.  l]  FACTS    ADMITTED  105 

thereto;  or  may  refuse  to  take  judicial  notice 
of  such  fact,  unless  and  until  the  party  calling 
upon  him  to  do  so  shall  produce  such  docu- 
ment or  book  of  reference.^^  This  extends  to 
such  matters  of  science  as  are  involved  in  the 
cases  brought  before  him.^^ 

§  57.  Facts  expressly  admitted  by  the 
parties,  either  by  their  pleadings  or  at  the 
hearing,  in  all  proceedings  inter  partes. — 
There  would  obviously  be  no  propriety  in  re- 
quiring evidence  to  be  given  in  proof  of  any 
fact  which  tlie  parties  to  the  proceeding,  or 
their  agents,  agree  to  admit  at  the  hearing, 
or  which  they  have  admitted  before  the  hear- 
ing and  with  reference  thereto,  or  by  their 
pleadings;  for  the  object  of  introducing  evi- 
dence at  all  is  to  enable  the  court  to  decide 
the  controversy  between  the  parties,  and 
there  can  be  no  controversy  over  facts  thus 
admitted.^-  But  proof  of  facts  necessary  to 
be  proved  by  the  prosecution  on  an  indict- 
ment for  felony  may  not  be  dispensed  with 
by  any  admissions,  made  by  the  counsel  of  the 
accused,  unless  made  at  the  trial,  and  conse- 

«o  Ste.  Dig.,  art.  59;  1  Gr.  Ev.,  §  6;  Tay.  Ev.,  §  21. 
»^  Brown  v.  Piper,  91  U.  S.,  37,  42. 
"  Ste.  Dig.,  art.  60. 


106  ON    PROOF  [part  II 

quently  in  the  presence  of  the  accused.^^ 
This  exception  is  made  probably  upon  the 
ground  that,  should  the  latter  suffer  convic- 
tion and  ijunishment  through  an  unauthorized 
admission  of  his  counsel,  he  could  not  after- 
wards obtain  adequate  redress  from  him  for 
the  injury,  as  might  be  done  by  a  person  who 
had  lost  a  civil  suit  from  the  same  cause.  So, 
also,  in  prosecutions  for  murder,  courts  will 
not  ordinarily  permit  a  conviction  upon  the 
mere  confession  of  the  prisoner,  without  some 
corroborative  evidence,  either  direct  or  cir- 
cumstantial, of  the  actual  commission  of  the 
crime ;  for  it  might  happen  that  the  prisoner, 
having  attempted  the  life  of  a  person  success- 
fully, as  he  supposed,  might  afterwards  con- 
fess having  killed  him,  when  in  fact  the  sup- 
posed murdered  man  might  have  actually 
escaped.^^  It  must  be  understood,  moreover, 
that  this  rule  dispensing  with  proof  of  the 
facts  admitted  is  applicable  only  to  actions 
instituted  inter  partes  and  not  to  proceedings 
to  obtain  a  judgment  in  rem,  which  has  been 
defined  to  be  *'an  adjudication  pronounced, 

53  Ste.  Dig.,  art.  60;  1  Phil.  Ev.,  4th  Am.  ed.,  p. 
524. 

54  1    Bishop   on   Crim.    Proc,   §§1056-9;    United 
States  V.  Wilhams,  1  Clif.  C.  C,  5. 


CHAP.  l]  FACTS    ADMITTED  107 

as  its  name  indeed  denotes,  upon  the  status  of 
some  subject  matter  by  a  tribunal  having  au- 
thority for  that  purpose"  and  which  has  the 
characteristic  quality  that  it  furnishes  in  gen- 
eral conclusive  proof  of  the  facts  adjudicated 
as  well  against  strangers  as  against  parties.'"'^ 
As  the  admission  of  a  fact  is  not  proof  of  it, 
but  merely  a  waiver  of  proof,  which,  as  such, 
can  be  binding  only  on  the  person  who  makes 
it  and  those  claiming  through  or  under  him, 
the  court,  before  rendering  a  judgment  in  rem 
to  be  conclusive  against  a  stranger,  must  have 
before  it  competent  legal  evidence  from 
which  to  find  the  facts  required  to  sujjport 
such  a  judgment  in  the  testimony  of  witness 
rendered  under  all  the  safeguards  demanded 
by  law.^' 

55  Taylor  Ev.,  §  1674,  citing  2  Smith  L.  C,  785, 
note  on  Duchess  of  Kingston's  case, 

56  §§  17,  55  ante,  §  58,  post. 


CHAPTER  II. 

ORAL  EVIDENCE. 

§  58.  All  ultimate  facts  to  be  proven  must 
be  established  by  direct  oral  testimony,  except 
in  four  enumerated  cases.— Ordinarily  the 
most  natural  and  satisfactory  method  of 
proving  the  existence  or  non-existence  of  any 
fact,  is  by  the  direct  oral  testimony  of  wit- 
nesses who  have  perceived  its  existence  or 
non-existence  by  the  operation  of  their  own 
senses  or  consciousness,  and  therefore  this  is 
the  means  most  generally  resorted  to  for  that 
purpose ;  and  it  is  permissible  to  employ  it  in 
all  cases,  excepting  (1)  where  the  fact  sought 
to  be  established  or  denied  is  in  contradiction 
of  a  conclusive  presumption  of  law;  or  (2) 
unless  it  be  a  transaction  of  a  public  nature 
of  which  the  law  requires  an  official  record  to 
be  kept;  or  (3)  unless  the  fact  to  be  proved 
be  the  contents  of  a  document;  or  (4)  the 
terms  of  some  contract  or  grant  which  the 
parties  have  reduced  to  writing,  and  which 
is  sought  to  be  proved  by  a  party  thereto,  or 
his  representative  in  interest,  for  the  purpose 

108 


CHAP.  II  ORAL    EVIDENCE  109 

of  enforcing,  varying  or  denying  some  right 
or  liability  thereunder.  Subject  to  these  ex- 
ceptions, which  will  be  considered  particular- 
ly hereafter,  all  the  ultimate  facts  which  form 
the  ground  of  the  decision  of  a  court  or  jury 
upon  an  issue  of  fact  (excepting  such  facts 
as  are  admitted  or  judicially  noticed,  and 
those  which  actually  take  place  at  the  trial), 
are  required  to  be  established  by  direct  oral 
evidence.  By  the  term  ultimate  fact  is  meant 
any  fact  which  a  witness  has  actually  per- 
ceived by  his  senses,  and  which  is  not  merely 
inferred  from  the  existence  or  non-existence 
of  some  other  fact  or  facts;  but  every  fact 
from  which  another  fact  is  inferred  must 
either  be  an  ultimate  fact  itself,  or  else  have 
been  established  either  mediately  or  imme- 
diately by  inference  from  other  ultimate 
facts.  The  rule  thus  laid  down  is  intended  to 
include  the  production  in  court  and  submis- 
sion to  its  inspection  of  all  documents  and 
other  things  (sometimes  called  demonstra- 
tive or  real  evidence)  for  the  purpose  of  con- 
firming, explaining  or  supplementing  the  oral 
statements  of  the  witnesses  introducing  them, 
and  which  are  always  necessary  to  prove  the 
facts  establishing  their  connection  with  or 
relation  to  the  questions  at  issue,  and  without 
which  they  could  not  be  received,  unless  they 


110  ON    PROOB'  [part  II 

are  such  officially  certified  documents  as  the 
law  provides  shall  prove  themselves.  For  ex- 
ample, in  an  action  for  breach  of  contract, 
the  contract  cannot  be  received  in  evidence 
without  oral  proof  that  it  was  executed  by  or 
on  behalf  of  the  party  sought  to  be  charged 
under  it;  at  the  trial  of  an  indictment  for 
homicide  the  lethal  weapons  with  which  the 
crime  is  supposed  to  have  been  committed 
may  not  be  exhibited  in  evidence  without  oral 
proof  of  facts  tending  to  connect  them  in 
some  way  either  with  the  crime  or  with  the 
accused ;  so  also  in  an  action  for  damages  for 
the  infringement  of  a  patent  when  the  pat- 
ented article  and  the  thing  alleged  to  be  an 
infringement  of  it  are  brought  into  Court, 
neither  can  be  received  in  evidence  for  com- 
parison with  the  other  until  after  testi- 
mony has  been  given  by  witnesses  to  show 
that  the  one  is  the  identical  thing  for  which 
the  plaintiff  holds  his  patent,  and  the  other 
has  been  either  made,  used  or  sold  by  the  de- 
fendant. So  that  in  all  these  cases  it  is  the 
oral  testimony  of  witnesses  which  furnishes 
the  ultimate  facts  upon  which  the  admissi- 
bility and  value  of  the  so-called  real  or  dem- 
onstrative evidence  depend. 

§  59.    How  oral  evidence  may  be  taken.— 
The  term  oral  evidence  as  used  in  this  connec- 


CHAP.  Il]  ORAL  EVIDENCE  111 

tion  includes  all  testimony  given  by  signs  or 
writing  by  witnesses  unable  to  speak.  It  may 
be  taken  in  open  Court  according  to  the  rules 
hereinafter  set  forth  relating  to  the  exami- 
nation of  witnesses,  or  may  be  taken  out  of 
Court  for  future  use  in  Court — 

(a)  Under  a  commission  in  the  manner 
prescribed  by  its  terms,  or  by  the  rules  of 
Court  or  the  statute  regulating  the  mode  of 
executing  the  same ;  or 

(b)  By  deposition  before  any  officer  of 
Court  or  other  person  or  persons  appointed 
for  that  purpose,  either  by  agreement  of  the 
parties  or  otherwise  under  the  provisions  of 
any  statute  or  rule  of  Court  governing  the 
tribunal  in  which  said  evidence  is  to  be  used ; 
but  such  depositions  are  to  be  taken  only  in 
the  manner  and  under  the  circumstances  pre- 
scribed, and  are  to  be  used  only  for  the  pur- 
poses and  upon  the  contingencies  expressly 
provided  by  the  terms  of  such  agreement  or 
statute  or  rule  of  Court. 

§  60.  Oral  evidence  must  be  direct,  but  may 
be  supplemented  by  demonstrative  proofs. — If 
it  refers  to  a  fact  alleged  to  have  been  seen  it 
must  be  the  evidence  of  a  witness  who  says  he 
saw  it;  if  it  refers  to  a  fact  alleged  to  have 
been  heard  it  must  be  the  evidence  of 
a    witness    who    says    he    heard    it;    if    it 


112  ON    PROOF  [part  11 

refers  to  a  fact  alleged  to  have  been 
perceived  by  any  other  sense  or  in  any 
other  manner,  it  must  be  the  evidence  of  a 
witness  who  says  he  perceived  it  by  that 
sense  or  in  that  manner;  if  it  refers  to  an 
opinion  or  to  the  grounds  on  which  that  opin- 
ion is  held,  it  must  be  the  evidence  of  the  per- 
son who  holds  that  opinion  on  such  grounds. 
As  above  stated,  a  witness  by  his  oral  testi- 
mony often  identifies  documents  and  other 
demonstrative  evidence  and  states  facts  ob- 
served by  him  connecting  them  in  some  way 
with  the  issues  on  trial  and  thereby  renders 
them  admissible  in  evidence  as  explanatory 
of  and  supplementary  to  his  verbal  state- 
ments of  which  they  thereby  thus  become  a 
part.  So  also  a  witness  in  describing  the 
place  where  something  that  he  saw  occurred 
can  often  best  convey  his  meaning  by  the  aid 
of  a  rough  diagram  drawn  by  himself  show- 
ing his  recollection  of  the  relative  positions 
of  the  persons  or  things  as  to  which  he  tes- 
tifies and  their  comparative  distances  from 
each  other.  Such  a  diagram  would  be  admis- 
sible as  illustrating  and  being  a  part  of  his 
verbal  testimony,  and  could  be  afterwards 
further  supplemented  by  a  more  elaborate 

1  Ste.  Dig.,  art.  62. 


CHAP.  Il]  PHOTOGRAPHS  118 

plat  made  by  a  competent  draftsman  who 
testifies  it  was  drawn  to  a  scale  upon  meas- 
urements made  by  himself,  at  the  place  re- 
ferred to  while  the  conditions  there  remained 
the  same. 

§61.  Photographs.— So  also  photographs 
of  places,  persons  and  things  described  in  the 
oral  testimony  of  witnesses,  may  be  admitted 
in  evidence  to  show  the  appearance  presented 
by  them  at  the  time  such  photographs  were 
taken  if  such  appearance  be  deemed  by  the 
Court  to  be  relevant  to  the  issues  on  trial, 
upon  satisfactory  proof  of  their  correctness 
being  furnished.^ 

(1)  The  proof  required  of  the  accuracy  of 
a  photograph  varies  with  the  nature  of  the 
evidence  the  photograph  is  offered  to  supply. 
Where  it  is  offered  only  as  a  general  repre- 
sentation of  physical  objects  as  to  which  tes- 
timony is  adduced,  for  the  mere  convenience 
of  witnesses  in  explaining  their  statements, 
very  slight  proof  of  accuracy  may  be  suffi- 
cient and  may  be  supplied  by  other  witnesses 
than  the  person  who  took  and  produced  it.^ 

2  Baustian  v.  Young,  152  Mo.,  317,  372;  53  S.  W., 
921;  75  Am.  St.  Rep.,  462,  with  extended  note  on 
p.  468 ;  State  v.  Matheson,  130  Iowa,  440 ;  103  N.  W., 
137;  114  Am.  St.  Rep.,  427  and  note  p.  437. 

3  Supra,  citing  Cunningham  v.  Fairhaven,  etc.,  R. 


114  ON    PROOF  [part  II 

And  photographs  taken  by  a  person  who 
is  not  skilled  in  photography  have  been  ad- 
mitted in  evidence  where  eye  witnesses  tes- 
tified they  were  truthful  representations  of 
the  scene  or  objects  they  purported  to  repre- 
sent.^ 

But  when  photographs  are  offered  as  di- 
rect evidence  of  things  which  have  not  been 
directly  described  by  a  witness  as  having 
come  within  his  observation,  or  where  they 
are  offered  as  representing  handwriting  which 
is  to  be  subjected  to  minute  and  detailed 
examination,  or  any  object  where  slight 
differences  in  height,  breadth  or  length  is  of 
vital  importance,  much  more  convincing  proof 
is  required,  for  it  is  well  known  that  a  photo- 
graph may,  through  the  want  of  skill  of  the 
photographer  or  through  his  intentional  and 

K.  Co.,  77  Conn.,  244;  60  A.,  107 ;  Nies  v.  Broadhead, 
75  Hun.,  255;  Dorsey  v.  Habersack,  84  Md.,  117;  35 
A.,  96;  Turner  v.  Boston,  158  Mass.,  261;  33  N.  E., 
520;  Archer  v.  N.  Y.,  etc.,  E.  E.,  106  N.  Y.,  590;  13 
N.  E.,  318 ;  Consolidated  Gas  Co.  v.  Smith,  109  Md., 
186,  199;  72  A.,  651. 

4N.  Y.,  etc.,  E.  E.  Co.  v.  Moore,  105  Fed.  725; 
Blair  v.  Pelham,  118  Mass.,  420;  Carlson  v.  Benton, 
66  Neb..  486 ;  92  N.  W.  600. 


CHAP.  Il]  PHOTOGRAPHS  115 

skillful  manipulations,  be  inaccurate  and 
even  misleading.^ 

The  admissibility  of  a  photograph  in  evi- 
dence, and  the  sufficiency  of  the  preliminary 
proofs  to  identify  it  or  show  that  it  is  a  fair  or 
accurate  representation  of  the  objects  which 
it  purports  to  portray,  are  questions  com- 
mitted largely  to  the  trial  judge  whose  de- 
cisions will  rarely  be  reversed  by  the  appel- 
late court,^  although  his  discretion  is  not  un- 
limited and  may  not  be  exercised  arbitrarily.^ 

It  has  also  been  held  in  a  number  of  recent 
cases  that  X  Ray  photographs,  or  sciographs, 
or  radiographs,  as  they  are  variously  called, 

'  Cunningham  v.  Fair  Haven,  etc.,  supra;  United 
States  V.  Ortiz,  176  U.  S.,  423,  430;  Beardslee  v. 
Columbia  Township,  188  Pa.  St.,  496;  41  A.,  617; 
68  Am.  St.  Eep.,  883;  Martin  v.  Moore,  99  Md.,  41, 
49;  57  A.,  671. 

eSellick  v.  Janesville,  104  Wis.,  570;  80  N.  W., 
544;  76  Am.  St.  Eep.,  892;  Blair  v.  Pelham,  118 
Mass.,  420;  Mauch  v.  Hartford,  112  Wis.,  40;  87 
N.  W.  816;  Van  Houton  v.  Morse,  162  Mass.,  414; 
38  N".  E.,  705 ;  44  Am.  St.  Eep.,  373 ;  26  L.  E.  A.,  430. 

7  DeForge  v.  N.  Y.,  etc.,  E.  E.,  178  Mass.,  59;  59 
N".  E.,  669;  86  Am.  St.  Eep.,  464;  State  v.  Cook,  75 
Conn.,  267 ;  53  A.,  589 ;  Lake  Erie,  etc.,  E.  E.  Co.  v. 
Wilson,  189  111.,  89;  59  N.  E.,  573;  Consolidated  Gas 
Co.  V.  Smith,  supra. 


116  ON   PROOF  [part  II 

showing  the  interior  conditions  of  a  human 
body  or  limb  which  are  beyond  the  observa- 
tion of  the  eye,  are  admissible  as  independ- 
ent evidence  of  such  condition  after  proof 
that  they  have  been  properly  taken  and  pro- 
duced by  a  competent  person.^ 

§  62.  Communication  by  telephone. —When 
it  is  material  to  prove  what  a  person  said  at 
any  time,  a  witness  who  heard  him  say  it  over 
the  telephone  is  competent  to  prove  this  fact 
as  direct  evidence,  provided  he  can  also  tes- 
tify that  he  recognized  the  voice  of  the  speak- 

s  State  V.  Matheson,  supra;  City  of  Geneva  v.  Bur- 
nett, 65  Neb.,  464;  91  N.  W.,  275;  101  Am.  St.  Rep., 
638 ;  58  L.  R.  A.,  257 ;  Chicao,  etc.,  Ry.  Co.  v.  Spence, 
213  111.,  220;  72  N.  E.,  796;  104  Am.  St.  Rep.,  213. 
In  the  case  of  Carlson  v.  Benton,  66  Neb.,  486;  92 
N..  W,,  600,  the  Court  held  that  to  constitute  the 
foundation  for  such  a  photograph  it  is  not  essential 
that  it  appear  that  it  was  taken  by  a  competent  per- 
son nor  that  the  condition  of  the  apparatus  with 
which  it  was  taken  and  the  circumstances  under  which 
it  was  taken,  were  such  as  to  secure  accuracy,  where 
it  was  shown  by  the  evidence  of  competent  witnesses 
that  it  truly  represented  the  object  it  is  claimed  to 
represent.  But  how  witnesses  could  be  competent  to 
testify  to  the  accuracy  of  its  representation  under  the 
circumstances  does  not  seem  quite  clear. 


CHAP.  Il]  TELEPHONE  117 

er.^  It  has  also  been  held  that  a  conversa- 
tion over  the  telephone  with  a  person  called 
np  at  his  private  office  is  admissible  in  evi- 
dence against  him  even  though  the  person 
who  testified  to  having  heard  it  did  not  recog- 
nize the  speaker's  voice.^*^  The  ground  for 
this  is  stated  to  be  that  when  a  person  places 
himself  in  connection  with  the  telephone  sys- 
tem through  an  instrument  in  his  office,  he 
thereby  invites  conversation  in  relation  to 
his  business  through  that  channel,  and  there- 
fore conversations  so  held  are  as  admissible 
in  evidence  as  personal  interviews  by  a  cus- 
tomer with  an  unknown  clerk  in  charge  of  an 
ordinary  shop  would  be  in  relation  to  the 

»  People  V.  Ward,  3  N".  Y.  Crim.  K.,  483,  511; 
Murphy  v.  Jack,  143  N.  Y.,  315;  36  F.  E.,  882;  40 
Am.  St.  R.,  500. 

10  Wolfe  V.  Mo.  Pacific  Ry.  Co.,  97  Mo.,  473;  11 
S.  W.,  49;  10  Am.  St.  Eep.,  331 ;  3  L.  R.  A.,  539 ;  Mo. 
Pacific  Ry.  Co.  v.  Heidenheimer,  83  Texas,  195;  17 
S.  W.,  608;  27  Am.  St.  Rep.,  861;  Shawyer  v.  Cham- 
berlain, 113  Iowa,  742 ;  84  Mo.,  661 ;  86  Am.  St.  Rep., 
411;  Knickerbocker  Co.  v.  Gardiner  Co.,  107  Md., 
556,  571 ;  69  A.,  405 ;  General  Hospital  Soc.  v.  N.  H. 
Rendering  Co.,  79  Conn.,  581 ;  65  A.,  1065 ;  Kansas 
City  Star  Co.  v.  Standard  Warehouse  Co.,  123  Mo., 
Ap.,  13 ;  99  S.  W.,  765 ;  Godair  v.  Ham.  Nat.  Bk.,  325 
lU.,  573;  80  N.  E.,  407;  116  Am.  St.  Rep.,  173. 


118  ON   PROOF  [part  II 

business  there  carried  on,  and  the  fact  that 
the  voice  at  the  telephone  was  not  identified 
does  not  render  the  conversation  inadmis- 
sible.^^ Some  of  the  Courts  have  gone  fur- 
ther and  admitted  conversation  by  telephone 
in  evidence  where  the  messages  were  trans- 
mitted by  a  third  party.  Thus  where  the 
plaintiff  directed  the  operator  on  a  long 
distance  telephone  to  call  up  a  certain  person 
at  a  distant  point  and  to  converse  with  him 
asking  the  questions  and  repeating  the  re- 
plies as  they  were  given  to  him,  the  Court 
held  the  operator  to  be  the  agent  of  both 
parties  and  permitted  the  plaintiff  to  give  the 
whole  conversation  in  evidence.^  ^ 

11  Wolfe  V.  Mo.  Pacific  Ry.  Co.,  supra,  but  the  bur- 
Hen  of  proof  always  rests  upon  the  party  introducing 
the  evidence  to  establish  by  some  proof  either  direct 
or  circumstantial,  the  identity  of  the  person  speak- 
ing: Young  V.  Seattle  Trans.  Co.,  33  Wasliington, 
225;  74  P.,  375;  99  Am.  St.  Eep.,  943;  63  L.  R.  A., 
988. 

12  SulHvan  v.  Kuykendall,  82  Ky.,  483 ;  56  Am. 
Eep.^  901,  followed  in  Oskamp  v.  Gadsden,  35  Neb., 
7;  52  N.  W.,  718;  37  Am.  St.  Rep.,  428;  17  L.  R.  A., 
440.  In  the  case  of  Banning  v.  Banning,  80  Cal.,  271 ; 
22  P.,  210;  13  Am.  St.  Rep.,  156,  where  it  appeared 
that  an  acknowledgment  of  a  deed  had  been  made  by 
a  married  woman  over  the  telephone  to  a  Notary  who 


CHAP.  Il]  PHONOGRAPHS  119 

§63.  Phonographic  records.— If  a  witness 
may  testify  as  to  what  he  heard  a  person  say 
over  the  telephone,  there  would  seem  to  be 
no  reason  why  he  should  be  excluded  from 
also  testifying  what  he  may  have  heard  such 
person  say  through  a  phonograph,  provided 
he  could  testify  as  to  his  recognition  of  the 
person's  voice  as  heard  through  it  and  also 
that  the  phonographic  record  was  taken  at 
a  time  when  the  speaking  of  the  words  therein 
recorded  would  make  them  material  evidence 
upon  the  issues  on  trial.  In  such  a  case  the 
record  should  itself  be  produced  in  Court  and 
heard  as  the  best  evidence  as  to  what  was 
actually  spoken  into  the  phonograph,  after 
its  introduction  by  extraneous  proof  of  the 
identification  of  the  voice  speaking  through 
it  and  of  the  time,  place  and  circumstances 
under  which  such  record  was  made.  It  has 
accordingly  been  held  that  the  trial  judge 
committed  no  error  when  in  a  condemnation 
case  he  permitted  the  defendant  to  operate 
a  phonograph  in  the  presence  of  the  jury  to 

was  three  or  four  miles  distant,  it  was  held  that  this 
did  not  invalidate  the  deed,  because  in  the  absence  of 
fraud,  accident  or  mistake  the  Notary's  certificate  in 
due  form  is  conclusive  of  the  material  facts  therein 
stated. 


120  our  PROOF  [part  II 

reproduce  sounds  claimed  to  have  been  made 
by  the  operator  of  trains  in  the  vicinity  of  the 
latter 's  hotel,  the  appellate  court  saying  that 
with  proper  proofs  such  as  were  given  in  the 
case  to  justify  the  introduction  of  the  instru- 
ment as  a  substantially  accurate  and  trust- 
worthy reproducer  of  the  sounds  actually 
made  and  testified  to,  it  thought  its  use  legiti- 
mate. It  further  added  that  the  ground 
for  receiving  the  testimony  of  the  phonograph 
seemed  to  be  the  same  as  that  for  the  admis- 
sion of  communication  by  telephones  and 
even  stronger,  since  in  its  case  there  is  not 
only  proof  by  the  human  witness  of  the  mak- 
ing of  the  sounds  to  be  reproduced,  but  a  re- 
production by  the  mechanical  witness  of  the 
sounds  themselves.^  ^ 

^3  Boyne  City,  etc.,  R.  R.  Co.  v.  Anderson,  146 
Mich.,  328;  109  K  W.,  439;  117  Am.  St.  Rep.,  642; 
8  L.  N.  S.,  306  case  note. 


CHAPTER  III. 

WHEN  ORAL  EVIDENCE  EXCLUDED. 

§  64.  Conclusive  presumptions  of  law  may 
not  be  contradicted  by  oral  evidence— Conclu- 
sive presumptions  —  Estoppels.  —  Conclusive 
presumptions  of  law  have  been  defined  as 
rules  determining  the  quantity  of  evidence 
requisite  for  the  support  of  any  particular 
averment,  which  is  not  permitted  to  be  over- 
come by  any  proof  that  the  fact  is  otherwise. 
They  consist  chiefly  of  those  cases  in  which 
the  long  experienced  connection  between  the 
facts  presumed,  and  those  forming  the 
ground  of  the  presumption,  has  been  found 
so  general  and  uniform  as  to  render  it  ex- 
pedient for  the  common  good  that  this  connec- 
tion should  be  taken  to  be  inseparable  and 
universal.  They  have  been  adopted  by  com- 
mon consent,  from  motives  of  public  policy, 
for  the  sake  of  greater  certainty  and  the  pro- 
motion of  peace  and  quiet  in  the  community, 
and  therefore  it  is  that  all  corroborating  evi- 
dence is  dispensed  with,  and  all  opposing  evi- 

121 


122  ON   PROOF  [part  II 

dence  is  forbidden.^  Whenever,  therefore, 
any  fact  in  issue  is  sought  to  be  established 
by  proof  of  other  facts  from  which  it  follows 
as  a  conclusive  presumption  of  law,  the  exist- 
ence of  such  fact  in  issue  cannot  be  contro- 
verted by  direct  oral  evidence,  but  only  by 
proof  contradicting  the  existence  of  the  al- 
leged facts  from  which  it  would  be  presumed. 
These  conclusive  presumptions  are  sometimes 
expressly  declared  by  statute,  as  in  certain 
statutes  of  limitation,  whereby  if  a  debt  has 
not  been  expressly  recognized  within  a  cer- 
tain number  of  years  as  a  subsisting  obliga- 
tion, it  is  conclusively  presumed  to  have  been 
satisfied.^  In  other  cases  these  conclusive 
presumptions  are  declared  by  the  courts  as 
part  of  the  common  law.^     The  principal  con- 

1 1  Gr.  Ev.,  §  15. 

2  Id.,  §  16. 

3  Id.,  §  17.  Several  presumptions  of  law  asserted 
by  Best,  Greenleaf,  Taylor  and  other  writers  to  be 
conclusive  are  now  regarded  by  the  courts  as  open  to 
contradiction  by  evidence.  There  is  now  a  decided 
tendency  to  reduce  the  number  and  to  limit  the  scope 
of  indisputable  presumptions,  which  is  probably  best 
explained  by  Dr.  Wharton's  remark  (Whar.  Ev., 
§  1234)  that  "practical  jurisprudence  soon  discovers 
that  a  presumption  that  is  irrebuttable  in  an  age  of 
ignorance  is  rebuttable  in  an  age  of  civilization." 


CHAP.  Ill]        CONCLUSIVE    PRESUMPTIONS  123 

elusive  presumptious  at  common  law  are  as 
follows : 

Wliere  the  possession  and  enjoyment  of 
property  has  been  uninterrupted,  exclusive 
and  adverse  to  all  others  for  a  period  of 
twenty  years,  the  possessor  is  conclusively 
presumed  to  have  a  good  title  thereto.^ 

Conclusive  presumptions  are  also  made  in 
favor  of  the  correctness  of  the  records  of 
judicial  proceedings,  and  that  a  party  to  a 
record  was  interested  in  the  suit;  and  after 
verdict  it  will  be  presumed  that  those  facts, 
without  proof  of  which  the  verdict  could  not 
have  been  found,  were  proved,  although  they 
are  not  expressly  alleged  in  the  record,  pro- 
vided it  contains  terms  sufficiently  general  to 
comprehend  them  in  fair  and  reasonable  in- 
tendment. The  presumption  will  also  be 
made,  after  twenty  years,  in  favor  of  every 
judicial  tribunal  acting  within  its  jurisdic- 
tion, that  all  persons  concerned  had  due 
notice  of  its  proceedings.'^  The  extent  to 
which  judgments  are  held  to  be  conclusive 
proof  of  the  matters  thereby  determined  has 
been  already  discussed  in  sections  36-40,  ante. 

A  bond  or  other  instrument  under  seal  is, 

4  1  Gr.  Ev.,  §  18. 
« Id.,  §  19. 


124  ON    PROOF  [part  II 

as  between  the  parties  thereto  and  their  priv- 
ies, conclusively  presumed  to  have  been  made 
upon  good  consideration  as  long  as  the  in- 
strument remains  unimpeached.^ 

Where  authority  has  been  given  by  law  to 
do  a  certain  act  in  a  prescribed  manner,  the 
lapse  of  a  sufficient  time  (which  is  in  most 
cases  fixed  at  thirty  years)  raises  a  conclu- 
sive presumption  that  all  legal  formalities 
which  are  not  required  to  be  made  matter  of 
record  have  been  duly  complied  with;  for 
great  imcertainty  of  titles  and  other  public 
mischiefs  would  result,  if  strict  proof  were 
required  of  facts  so  transitory  in  their  na- 
ture, and  the  evidence  of  which  would  gen- 
erally be  unattainable  after  so  long  a  timeJ 

Conclusive  presumptions  are  made  in  re- 
spect to  infants;  as  that  one  under  seven 
years  of  age  is  incapable  of  committing  a 
felony  for  want  of  discretion;  that  a  girl 
under  ten  years  old  is  incapable  of  consent- 
ing to  sexual  intercourse,  and  that  a  boy  un- 
der fourteen  is  incapable  of  committing  a 
rape.^ 

6 1  Gr.  Ev.,  §  19. 

7  Id.,  §  20. 

8  While  the  common-law  presumption  that  a  boy 
under  fourteen  is  incapable  of  committing  a  rape  ie 


CHAP.  Ill]  LEGITIMACY  125 

Any  child  whose  mother  had  a  husband  liv- 
ing at  any  time  when  it  could,  in  the  ordinary 
course  of  nature,  have  been  begotten,  is  con- 
clusively presumed  to  be  the  legitimate  child 
of  such  husband  unless  the  mother  is  divorced 
from  him  a  mensd  et  thoro,  or  unless  im- 
potence or  non-access  of  the  husband  be 
proven  and  neither  the  testimony  of  the  hus- 
band or  the  wife,  nor  any  declarations  made 
by  either  of  them,  is  admissible  testimony  for 
the  purpose  of  proving  non-access.^ 

still  recognized  as  conclusive  in  some  of  the  United 
States,  the  present  tendency  of  the  courts  in  this 
country  is  to  regard  it  as  a  rebuttable  presumption 
only  that  may  be  overcome  by  proof  that  he  has  at- 
tained the  age  of  puberty  and  has  physical  capacity 
to  consummate  the  crime.  See  cases  cited  in  note  to 
Smith  V.  State,  80  Am.  Dec,  p.  363. 

»  1  Gr.  Ev.,  §  28 ;  Ste.  Dig.,  art.  98 ;  Tay.  Ev., 
§§  106,  950;  1  Whar.  Ev.,  §  608;  2  id.,  §1298;  Scan- 
Ion  V.  Walshe,  81  Md.,  118,  130;  31  A.,  498;  48  Am. 
St.  E.,  488.  All  these  text-books,  as  well  as  all  the 
cases  that  I  know  of,  except  "Woodward  v.  Blue,  107 
N.  C,  407;  12  S.  E.,  453;  22  Am.  St.  R.,  897;  10  L. 
R.  A.,  663,  and  Bullock  v.  Knox,  96  Ala.,  195,  198 ; 
11  So.,  339,  lay  down  the  law  as  above  stated,  yet  it 
is  very  questionable  whether  any  court  of  last  resort 
would  hold  that  a  mulatto  child  must  be  conclusively 
presumed  to  be  the  legitimate  offspring  of  white  par- 


126  ON  PROOF  [part  II 

Estoppels  may  also  be  included  in  the  list 
of  conclusive  presumptions.  Whenever  one 
person,  by  anything  which  he  does  or  says,  or 
abstains  from  doing  or  saying,  intentionally 
causes  or  permits  another  person  to  believe 
a  thing  to  be  true,  and  to  act  to  his  injury 
upon  such  belief  otherwise  than  but  for  that 
belief  he  would  have  acted,  neither  the  person 
first  mentioned,  nor  his  representative  in  in- 
terest, is  allowed,  in  any  suit  or  proceeding 
between  himself  and  such  other  person,  or  his 
representative  in  interest,  to  deny  the  truth 
of  that  thing,^*^*  This  is  nothing  more  than  a 
practical  application  of  the  doctrine  of  nat- 
ural justice,  which  does  not  permit  a  man 
to  take  advantage  of  his  own  wrongful  act; 

entSo  The  exclusion  of  the  testimony  of  either  hus- 
band or  wife  upon  the  question  of  non-access  is  ac- 
cording to  Lord  Mansfield,  in  Goodright  v.  Moss,  2 
Cowp.  594,  "founded  in  decency,  morality  and  public 
policy."  But  while  these  considerations  might  well 
forbid  them  to  testify  as  to  the  fact  of  intercourse 
vel  non,  it  is  difficult  to  see  why  a  husband  who  has 
been  continuously  absent  from  the  state  for  a  year  or 
more  prior  to  the  birth  of  his  wife's  child  should  be 
forbidden  to  testify  as  to  that  fact. 

10  Ste.  Dig.,  art.  102;  Ketchum  v.  Duncan,  96  U. 
S.,  659,  666.  See,  also,  title  Estoppel  in  Amer.  & 
English  Encyclopedia  of  Law. 


CHAP.  Ill]  ESTOPPELS  127 

and  it  lias  been  extended  to  cases  where  one 
party,  by  a  culpable  want  of  care,  which  it 
was  his  duty  to  have  exercised  towards  an- 
other, has  caused  the  latter  to  be  misled  by 
the  fraud  of  a  third  party;  thus,  where  a 
customer  keeping  an  account  at  a  bank,  draws 
a  check  so  carelessly  that  the  amount  for 
which  it  is  given  is  fraudulently  raised  by  the 
insertion  of  additional  words  and  figures  be- 
fore presentation,  and  the  bank  pays  it  in 
good  faith,  such  customer  is  not  permitted  to 
deny,  as  against  the  bank,  that  such  check 
was  originally  drawn  by  him  for  the  full 
amount  paid  by  it.^^  Among  the  cases  to 
which  this  doctrine  of  estoppel  is  most  fre- 
quently applied,  is  that  of  the  acceptor  of  a 
bill  of  exchange,  who  is  not  permitted  to  deny 
the  signature  of  the  drawer  or  his  capacity  to 
draw  or  indorse  the  bill,  nor,  if  it  be  drawn  by 
procuration,  the  authority  of  the  agent  to 
draw  it; ^2  and  also  that  of  a  person  having 

1^  Young  V.  Grote,  4  Bing.,  253;  Ste.  Dig.,  art. 
102,  illustration  (e)  ;  Hardy  v.  Chesapeake  Bank,  51 
Md.,  562;  34  Am.  E.,  325;  Leather  Mfrs.  Bank  v. 
Morgan,  117  U.  S.,  96.  But  see  Burrows  v.  Klunk, 
70  Md.,  451,  457 ;  17  A.,  378 ;  3  L.  E.  A.,  576. 

12  Ste.  Dig.,  art.  104;  United  States  Bank  v.  Bank 
of  Georgia,  10  Wlieat.,  333,  353;  Nat.  Park  Bank  v. 
Ninth  Nat.  Bank  r.f  N.  Y.,  46  N.  Y.,  77 ;  7  Am.  E., 


128  ON    PROOF  [part  II 

possession  of  any  property,  real  or  personal, 
either  as  tenant,  licensee,  bailee,  or  agent  of 
another,  who  is  not  permitted,  during  the 
continuance  of  such  possession,  to  deny  that 
his  lessor,  licensor,  bailor  or  principal  had  a 
right  to  the  possession  of  such  property  at 
the  time  when  the  same  was  so  leased  or  en- 
trusted to  him.^^  As  a  general  rule,  also,  the 
parties  to  a  deed  and  their  privies  are  not 
permitted,  as  against  each  other,  to  dispute 
any  matter  recited  therein,  nor  may  the 
grantor  deny  that  he  had  any  title  in  the 
thing  granted.^* 

§  65.  Oral  testimony  excluded  as  to  mat- 
ters of  which  the  law  requires  a  full  official 
record  to  be  kept.— Direct  oral  evidence  may 

310;  1  Chalm.  Dig.,  Bills  Exch.,  art.  212.  As  to  how 
far  parties  to  negotiable  paper  are  incompetent  wit- 
nesses to  impeach,  etc.,  see  sec.  99,  post. 

^3  Ste.  Dig.,  arts.  103,  105;  Kinsman  v.  Parkhurst, 
18  How.,  289,  293;  Howe  v.  Simmons,  1  Cal.,  119; 
52  Am.  D.,  290 ;  The  Idaho,  93  U.  S.,  575 ;  Burton  v. 
Wilkinson,  18  Vt.,  186 ;  46  Am.  D.,  145 ;  Pulliam  v. 
Burlingame,  81  Mo.,  Ill;  51  Am.  R.,  229. 

iM  Gr.  Ev.,  §§  23,  24;  Tay.  Ev.,  §§  96,  97;  Van 
Renssaler  v.  Kearney,  11  How.,  297,  325;  Reichard 
V.  Va.  Lead  Mining  Co.,  107  Mo.,  616;  18  S.  W.,  17; 
28  Am.  St.  R.,  441;  Cobb  v.  Oldfield,  151  III,  540; 
38  N.  E.,  142 ;  42  Am.  St.  R.,  263 ;  2  Ell.  Ev.,  §  1538. 


CHAP.  Ill]  OFFICIAL   RECORDS  129 

not  ordinarily  be  given  of  any  transaction  of 
a  public  nature,  of  which  the  law  requires  a 
full  official  record  to  be  kept.  Thus,  judicial 
proceedings  must  be  proved  from  the  records 
of  the  court,  and  not  by  the  oral  testimony  of 
persons  who  were  present  at  the  trial. ^*^  But 
any  facts  connected  with  the  trial,  which  were 
not  proper  to  be  incorporated  in  the  record 
and  are  not  inconsistent  therewith,  may, 
when  relevant,  be  proved  by  parol  testi- 
mony;^^ thus,  when  the  record  of  a  former 
suit  between  the  same  parties  is  offered  in 
evidence  to  bar  the  plaintiff 's  right  of  action, 
and  such  record  does  not  clearly  show  that  the 
matter  in  controversy  in  the  second  suit  was 
necessarily  and  directly  decided  by  the  jury 
in  the  former  action,  parol  evidence,  consist- 
ent with  the  record,  may  be  received  as  to 
what    points    were    in    controversy    at    the 

^5  Johnson  v.  Masonic  Lodge  No.  33,  106  Ky.,  838 ; 
51  S.  W.,  620;  see,  also,  Toledo,  etc.,  Co.  v.  Glenn 
Mfg.  Co.,  55  0.  St.,  219 ;  45  N.  E.,  197 ;  Oklahoma, 
etc.,  Co.  V.  F.  W.  Wolf  Co.,  118  Fed.,  239. 

16  1  Whar.  Ev.,  §  63 ;  Adams  v.  Betz,  1  Watts,  425 ; 
26  Am.  D.,  79 ;  Lyon  v.  Boiling,  14  Ala.,  753 ;  48  Am. 
D.,  122 ;  Embden  v.  Lishernen,  89  Me.,  578 ;  56  Am. 
St.  E.,  442. 

1^  Whar.  Ev.,  §  64 ;  Fahey  v.  Esterly  Machine  Co., 
3  K  Dak.,  320 ;  44  Am.  St.  R.,  554,  and  note. 

9 


130  ON   PROOF  [part  II 

former  trial,  what  testimony  was  given,  and 
what  questions  were  submitted  to  the  jury 
for  their  consideration.^^  So,  also,  acts  of 
the  legislative  or  executive  departments  of 
the  government,  in  so  far  as  the  law  requires 
that  they  shall  be  officially  recorded,  must  be 
proved  (unless  judicially  noticed)  by  such 
official  records.^  ^  This  rule  is  founded  upon 
the  theory  that  an  official  record,  made  at 
the  time  for  the  benefit  of  the  public,  by  its 
agents  duly  authorized  and  appointed  for  that 
purpose,  is,  so  far  as  it  goes,  the  best  attain- 
able evidence  of  such  matters,  and  therefore, 
to  that  extent,  always  exclude  oral  evidence, 
as  inferior  in  quality. 

§  66.  The  contents  of  a  written  instrument 
can  only  be  proved  by  production  of  the  docu- 
ment itself,  except  in  certain  cases.— Upon  the 
same  principle,  when  the  contents  of  any 
written  instrument  are  to  be  proved,  the  best 
kind  of  evidence  is  by  the  production  of  the 
document  itself,  which  is  called  primary  evi- 
dence. This  excludes  all  other  or  secondary 
evidence  of  its  contents,  excepting  admissions 

18  Packet  Co.  v.  Sickles,  5  Wall.,  580,  592. 

^M  Gr.  Ev.,  §§  479,  480;  1  Whar.  Ev.,  §  65;  At- 
wood  V.  Winterport,  60  Me.,  252 ;  Elliott  v.  Piersoll, 
1  Pet.,  328,  340. 


CHAP.  Ill]  CONTENTS    OF    DOCUMENT  131 

made  by  the  opposite  party  or  his  representa- 
tives, unless  the  document  in  question  be  a 
public  one,  or  is  the  subject  of  special  stat- 
utory provision,  or  its  production  is  out  of 
the  party's  power,  or  when  the  originals  con- 
sist of  numerous  documents  which  cannot  con- 
veniently be  examined  in  court,  and  the  fact 
to  be  proved  is  the  general  result  of  the  whole 
collection,  in  which  cases  secondary  evidence 
of  their  contents  is  admitted  to  the  extent 
hereafter  stated.^°  But  the  rule  does  not  ap- 
ply to  cases  where  the  inquiry  into  the  con- 
tents of  a  document  comes  up  collaterally  at 
the  trial,  and  where  they  are  not  directly  in- 
volved in  the  controversy.^^  Whenever  a 
document  is  executed  in  several  parts,  each 

20  Ste.  Dig.,  arts.  65,  71 ;  Georgia,  etc.,  Ry.  Co.  v. 
Strickland,  80  Ga.,  776;  6  S.  E.  27;  12  Am.  St.  R., 
282.  As  to  proof  by  admissions  of  opposing  party,  see 
1  Gr.  Ev.,  §69;  Best  on  Ev.,  §525;  Slatterie  v. 
Pooley,  6  M.  &  W.,  664;  Smith  v.  Palmer,  5  Gush., 
513,  520;  Loomis  v.  Wadhara,  8  Gray,  557;  Hoefling 
V.  Hambleton,  84  Tex.,  517;  19  S.  W.,  689;  Morey  v. 
Hoyt,  62  Conn.,  542,  557 ;  26  A.,  127.  Contra,  Wel- 
land  Canal  Co.  v.  Hathaway,  8  Wend.,  480 ;  24  Am. 
D.,  51.    As  to  other  exceptions,  see  sees.  71,  73,  post. 

21  Faulcon  v.  Johnson,  102  N.  C,  264;  11  Am.  St. 
R.,  737.  Comp.  sees.  68,  76,  post;  Jones  v.  Hoard, 
59  Ark.,  42;  43  Am.  St.  R.,  17,  19. 


132  ON  PROOF  [part  II 

part  is  primary  evidence;  and  when  it  is 
executed  in  counterpart,  each  counterpart  be- 
ing executed  by  one  or  more  of  the  parties 
only,  each  counterpart  is  primary  evidence 
as  against  the  parties  who  executed  it.^'-^ 
When  a  number  of  documents  are  all  made  by 
printing,  lithography  or  photography,  or  any 
other  process  of  such  a  nature  as  in  itself  to 
secure  uniformity  in  the  copies,  each  is 
primary  evidence  of  the  contents  of  the  rest ; 
but  when  they  are  all  copies  of  a  common  orig- 
inal, no  one  of  them  is  primary  evidence  of 
the  contents  of  the  original.^^  When  carbon 
sheets  are  inserted  between  two  or  more 
sheets  of  writing  paper  so  that  the  writing  of 
a  contract  upon  the  outside  sheet,  including 
the  signature  of  the  party  to  be  charged 
thereby,  produces  a  facsimile  upon  the 
sheets  beneath,  such  signature  being  thus  re- 
produced by  the  same  stroke  of  the  pen  which 
made  the  surface  or  exposed  impression,  all 
of  the  sheets  so  written  on  are  regarded  as 
duplicate  originals  and  either  of  them  may  be 

22  Ste.  Dig.,  art.  64 ;  Roe  d.  West  v.  Davis,  7  East, 
363;  Cleveland  R.  E.  v.  Perkins,  17  Mich.,  296,  299. 

23  Ste.  Dig.,  art.  64;  1  Whar.  Ev.,'§  92 ;  E.  v.  Wat- 
son, 2  Star.,  129;  Noden  v.  Murray,  2  Camp.,  224; 
Foot  V.  Bentley,  44  N.  Y.,  166;  4  Am.  R.,  652. 


OHAP.  Ill]  CARBON   DUPLICATES  133 

introduced  in  evidence  as  such  without  ac- 
counting for  the  nonproduction  of  the 
others.^^  But  of  course  this  does  not  apply 
to  carbon  copies  which  do  not  include  the  sig- 
nature made  at  the  same  time  and  by  the  same 
process,  or  which  leave  anything  to  be  added 
before  the  document  has  been  fully  executed 
as  a  binding  obligation,  for  such  imperfect 
carbon  copies  would  be,  like  letter  press 
copies,  only  secondary  evidence.  The  origi- 
nal paper  sent  to  a  telegraph  office  is  primary 
evidence  of  the  message  sent  as  against  the 
sender,  but  not  of  the  message  received  at  the 
place  of  its  delivery.  The  telegram  delivered 
to  the  person  addressed  is  primary  evidence 
as  against  him  of  the  communication  he  re- 
ceived, but  only  secondary  evidence  of  the 
message  that  was  sent  to  him.^^ 

24  International  Harvester  Co.  v.  Elfstrom,  101 
Minn.,  263;  113  N.  W.,  252;  118  Am.  St.  R.,  626; 
12  L.  N".  S.,  343. 

25  Smith  V.  Easton,  54  Md.,  138;  39  Am.  R.,  355; 
Oregon  Steamship  Co.  v.  Otis,  100  N.  Y.,  446 ;  3  N. 
E.,  485 ;  53  Am.  R.,  221 ;  Conyers  v.  Postal  Tel.  Cable 
Co.,  92  Ga.,  619;  19  S.  E.,  253;  44  Am.  St.  R.,  100. 
Upon  proof  of  delivery  of  the  message  at  the  office 
properly  addressed  for  transmission,  a  disputable 
presumption  of  fact  arises  that  the  telegram  reached 
its  destination.  Oregon  Steamship  Co.  v.  Otis,  siijira. 


134  ON  PROOF  [part  II 

§  67.  Attested  documents  must  be  proved 
by  at  least  one  of  the  subscribing  witnesses,  if 
any  such  is  alive  or  can  be  found.— Whenever 
any  document  to  be  proved  has  been  attested 
by  one  or  more  subscribing  witnesses,  it  may 
not  be  used  in  evidence  except  as  hereinafter 
mentioned,  if  there  be  an  attesting  witness 
alive,  sane  and  subject  to  the  process  of  the 
court,  until  at  least  one  attesting  witness  has 
been  called  for  the  purpose  of  proving  its  ex- 
ecution; and  if  no  such  attesting  witness  is 
alive  or  can  be  found,  the  signatures  of  at 
least  one  of  the  attesting  witnesses  and  of  the 
person  or  persons  who  executed  the  instru- 
ment must  be  proved.^*^  This  rule  has  been 
extended  to  cases  where  the  document  has 

In  the  following  cases  the  message  received  has  been 
held  primary  evidence  of  the  message  sent,  upon  the 
ground  that  the  sender  made  the  telegi'aph  company 
his  agent;  Saveland  v.  Green,  40  Wis.,  431;  Morgan 
V.  People,  59  111,,  58 ;  Wilson  v.  Minneapolis,  etc.,  Co., 
31  Minn.,  483;  18  N.  W.,  291;  Magie  v.  Herman,  50 
Minn.,  424;  52  N.  W.,  909;  36  Am.  St.  E.,  660; 
Ayer  v.  W.  U.  Tel.  Co.,  79  Me.,  493 ;  10  A.,  495 ;  W. 
U.  T.  Co.  V.  Shotter,  71  Ga.,  760.  But  there  must  be 
some  preliminary  proof  of  the  agency  of  the  com- 
pany. Culver  V.  Warren,  36  Kan.,  391 ;  13  P.,  577. 
26  Ste.  Dig.,  art.  66;  1  Whar.  Ev.,  §  723;  Citizens' 
Bank  v.  Steamboat  Co.,  2  Story,  16;  5  Fed.  Cas., 
719,  728. 


CHAP.  Ill]  ATTESTIXG    WITNESSES  135 

been  burnt  or  canceled ; "'  where  the  subscrib- 
ing witness  was  blind ;  ^*  where  the  party  who 
executed  the  document  was  prepared  to  tes- 
tify to  his  own  execution  of  it ;  ^^  and  where 
the  party  offering  the  document  was  prepared 
to  prove  an  admission  of  its  execution  by  the 
person  who  executed  it.^*^  The  reason  as- 
signed for  this  rule  is  that  some  fact  may  be 
known  to  the  subscribing  witness  not  within 
the  knowledge  or  recollection  of  the  person 
who  executed  the  instrument,  and  that  the  lat- 
ter is  entitled  to  avail  himself  of  all  the 
knowledge  of  the  subscribing  witness  relative 
to  the  transaction;-"'^  but  when  the  adverse 
party  to  the  cause  chooses  deliberately  to 
waive  this  privilege  by  admitting  the  execu- 
tion of  the  instrument  in  reference  to  the 
cause,^-   or  where,  having  produced  the  in- 

27  Gillies  V.  Smither,  2  Star.  E.,  528 ;  Breton  v. 
Cope,  Pea.  E.,  43. 

28  Cronk  v.  Frith,  9  C.  &  P.,  197. 

29  E.  V.  Harring^vorth,  4  M.  &  S.,  353 ;  Story  v. 
Lovett,  1  E.  D.  Smith,  153;  Brigham  v.  Palmer,  3 
Allen,  450.    Contra,  Forsythe  v.  Hardin,  62  111.,  206. 

30  Call  V.  Dunnmg,  4  Ea.,  53 ;  Fox  v.  Eeid,  3 
Johns.,  477 ;  Turner  v.  Green,  2  Cranch,  C.  C,  202. 

31  1  Gr.  Ev.,  §  569. 

32  Ste.  Dig.,  art.  Q6 ;  1  Gr.  Ev.,  §  572 ;  Freeman  v. 
Steggall,  14  Q.  B.,  203. 


136  ON    PROOF  [part    II 

strument  pursuant  to  notice,  lie  admits  its 
validity  by  claiming  an  interest  under  it  in 
the  subject-matter  of  the  cause,  and  still  sub- 
sisting at  the  time  of  trial,^^  this  reason  ceases 
to  exist,  and  in  such  cases  no  further  proof 
of  the  execution  than  such  admission  is  re- 
quired. But  if,  when  the  attesting  witness  is 
examined,  he  denies  or  does  not  recollect  hav- 
ing seen  the  document  executed,  the  fact  of  its 
execution  may  then  be  established  by  any 
other  evidence,  for  it  would  be  manifestly 
unjust  that  a  party  should  be  concluded  by 
the  testimony  of  a  witness  whom  the  law  com- 
pels him  to  call.^'* 

§  68.  Exceptions  to  rule  requiring  attesting 
witnesses  to  be  examined.— The  exceptions  to 
the  rule  requiring  attesting  witnesses  to  be 
called  to  prove  the  execution  of  documents 
are:  (1)  Where  the  instrument  is  thirty  years 
old,  and  comes  from  the  proper  custody;  in 
which  case,  as  we  shall  presently  see,^^  it  may 

33Ste.  Dig.,  art.  67;  1  Gr.  Ev.,  §571;  Pearce  v. 
Hooper,  3  Tau.,  60;  McGregor  v.  Wait,  10  Gray, 
72;  69  Am.  D.,  305. 

34  Ste.  Dig.,  art.  68 ;  1  Gr.  Ev.,  §  572 ;  1  Whar.  Ev., 
§  730;  Thomas  v.  Le  Baron,  8  Mete,  355;  Hall  v. 
Phelps,  3  Johns.,  451. 

3'  Post,  §  79. 


CHAP.  Ill]  ATTESTING    WITNESSES  137 

be  said  to  prove  itself,  it  being  presumed  that 
the  subscribing  witnesses  are  all  dead,  and 
that  other  proof  of  its  execution  is  beyond 
the  reach  of  the  party. ^®  (2)  Where  the  in- 
strument is  shown  or  appears  to  be  in  the 
possession  or  power  of  the  adverse  party, 
who,  after  due  notice,  has  refused  to  produce 
it  when  called  for;  in  which  case,  the  latter, 
having  by  such  refusal  driven  his  opponent 
to  give  secondary  evidence  of  its  contents, 
cannot  then  change  his  mind,  produce  the 
original,  and  object  to  its  admissibility  with- 
out the  evidence  of  an  attesting  witness ;  ^^ 
for  the  law,  by  allowing  this,  would  encourage 
the  withholding  of  material  evidence.  (3) 
"Where  the  instrument  is  not  directly  in  issue, 
but  comes  incidentally  in  question  in  the 
course  of  the  trial ;  ^^  thus,  where  A.  sues  B. 
upon  an  agreement  to  pay  him  for  certain 
work  the  same  price  which  C.  had  contracted 
to  give  him  for  similar  services,  the  contract 

36  1  Gr.  Ev.,  §  670 ;  Ste.  Dig.,  art.  88 ;  Jackson  v. 
Blanshaw,  3  Johns.,  392,  295 ;  3  Am.  D.,  485 ;  Barr 
V.  Gratz,  4  Wheat.,  213,  221 ;  Winn  v.  Patterson,  9 
Peters,  663,  674;  1  Whar.  Ev.,  §§  194-199,  703,  732. 

37  Ste.  Dig.,  art.  67;  Tay.  Ev.,  §§1818,  1847; 
Poole  V.  Warren,  8  A.  &  E.,  588;  Davis  v.  Spooner, 
3  Pick.,  284. 

88  1  Gr.  Ev.,  §  573b;  Ste.  Dig.,  art.  67. 


138  ON    PROOF  [part  II 

between  A.  and  C.  may  be  proved  by  any  com- 
petent testimony,  without  calling  the  sub- 
scribing witnesses  ;  ^^  for  the  question  as  to 
whether  or  not  it  was  validly  executed  is  not 
put  in  issue.  (4)  Where  a  different  method 
of  proof  is  allowed  by  statute.  Thus,  in  all 
cases  where  the  law  provides  that  a  certified 
copy  of  any  recorded  instrument  shall  be  re- 
ceivable in  evidence,  the  original,  when  shown 
to  have  been  duly  registered,  is  admissible  to 
the  same  extent,  without  further  proof  by  the 
subscribing  witnesses ;  ^^  and  so,  when  the 
law  declares  that  any  instrument,  acknowl- 
edged as  therein  provided,  shall  be  admissible 
in  evidence  uj^on  proof  of  such  acknowledg- 
ment, this  dispenses  with  the  necessity  for 
calling  the  attesting  witnesses  in  all  cases 
where  the  conditions  required  by  the  statute 
as  prerequisites  of  the  acknowledgment  ap- 
pear from  the  record  to  have  been  complied 
with.^^  The  general  tendency  of  legislation  in 
the  United  States  has  been  to  abolish  the  rule 
requiring  the  attesting  witnesses  to  a  docu- 
ment to  be  called  before  it  can  be  offered  in 

S9  Curtis  V.  Belknap,  6  Wash,,  433. 

40  Knox  V.  Silloway,  1  Fairchild  (Me.),  201,  216. 

41  1  Whar.  Ev.,  §  740;  Houghton  v.  Jones,  1  Wall, 
702 ;  Younge  v.  Guilbeau,  3  Wall.,  636. 


CHAP.  Ill]  PUBLIC   DOCUMENTS  139 

evidence,  excepting  that  the  subscribing  wit- 
nesses to  a  will  must  always  be  produced, 
if  practicable,  before  it  will  be  admitted  to 
probate,  the  peculiar  nature  of  such  an  in- 
strument rendering  the  adherence  to  this 
method  of  proof  more  important  than  in 
other  cases. 

§  69.  The  contents  of  public  documents 
may  be  proved  by  copies— Certified  copies.— 
Public  documents  are  permitted  to  be  proven 
by  copies^^  because  of  the  great  inconvenience 
which  would  result  from  the  frequent  removal 
of  the  originals,  if  their  production  were  re- 
quired every  time  it  became  necessary  to 
prove  in  court  any  matters  therein  contained, 
and  also  because  the  originals  are  so  acces- 
sible for  inspection  by  all  parties  interested, 
as  to  render  it  an  easy  matter  to  detect  any 
material  variations  between  them  and  the 
copies  offered  in  evidence.^^  It  is  laid  down 
as  the  law  in  England  that  any  public  docu- 
ment whatever  may  be  proved  by  an  exam- 
ined copy,  that  is,  a  copy  proved  by  oral  evi- 
dence to  have  been  examined  with  the  origi- 
nal and  to  correspond  therewith,^"*  with  two 


42  Ste.  Dig.,  art.  71. 

43  Stark.  Ev.,  p.  *647;  1  Gr.  Ev.,  §  91. 

44  Ste.  Dig.,  art.  75. 


140  ON    PROOF  [part  II 

exceptions,  viz. :  first,  where  issue  has  been 
joined  on  a  plea  or  replication  of  nvl  tiel  rec- 
ord in  some  cause  in  the  same  court  to  which 
the  disputed  record  belongs;  and  secondly, 
where  a  person  is  indicted  for  perjury  in 
any  affidavit,  deposition  or  answer,  or  for 
forgery  with  respect  to  any  record ;  in  either 
of  which  cases  the  original  document  must 
be  produced,  unless  it  be  shown  to  have  been 
lost  or  destroyed,  or  that  the  prisoner  has  got 
possession  of  it.''^  It  is,  however,  extremely 
questionable  as  to  how  far  this  rule  would 
be  recognized  without  qualification  in  most  of 
the  courts  of  this  country.^''  Ample  provi- 
sion has  been  made  both  by  federal  ^'^  and 
state  legislation  for  furnishing  certified 
copies  of  all  public  documents,  duly  authen- 
ticated under  the  hands  or  official  seals  of  the 
officers  having  the  custody  of  the  originals, 
or  in  some  other  manner  provided  by  law. 
Such  certified  copies  being  generally  declared 
by  statute  to  be  evidence  equally  with  the 
originals,  are  thereby  in  effect  made  primary 
evidence,  and  therefore,  when  it  is  in  the 
power  of  the  party  to  procure  them,  they  ex- 

45  Tay.  Ev.,  §  1535. 

4«  Cornett  v.  Williams,  20  Wall.,  226,  246. 

47  Rev.  Stat.  U.  S.,  §§  882-908. 


CHAP.  Ill]  EXAMINED    COPIES  141 

elude  all  secondary  evidence,  excepting,  per- 
haps, examined  copies.*®  The  fact  that  cer- 
tified copies  are  easily  obtained  has  caused 
them  to  be  so  generally  used  as  the  means  of 
proving  the  contents  of  public  documents, 
that  the  question  as  to  whether  an  examined 
copy,  not  certified,  would  be  admissible  in  evi- 
dence in  cases  where  such  certified  copies 
were  obtainable,  seems  to  have  been  directly 
passed  upon  by  but  few  courts  of  final 
resort  in  the  United  States ;  but  an  examined 
copy,  not  certified,  being  only  secondary  evi- 
dence, would  seem  upon  principle  to  be  ex- 
cluded in  such  cases  by  the  rule  requiring 
the  best  attainable  evidence  to  be  produced.^® 
Public  or  private  acts  of  congress,  or  of  any 
state  or  territorial  legislature,  may  generally, 
throughout  the  Union,  be  read  in  evidence 
from  any  book  purporting  to  have  been 
printed  by  authority.^^     Judicial  proceedings 

48  1  Whar.  Ev.,  §  90 ;  2  Elliott  Ev.,  §  1265,  etc. 

4^  The  language  of  the  Supreme  Court  of  the 
United  States  in  Cornett  v.  Williams,  20  Wall.,  246, 
strongly  favors  the  view  expressed  in  the  text;  but 
see  1  Gr.  Ev.,  §  91,  and  Abb.  Tr.  Ev.,  ch.  xxix  1-4, 
which  follow  the  English  rule.  The  cases  on  this 
point  will  be  found  in  a  note  to  §  1273  of  2  Wig- 
more  on  Ev. 

60  1  Gr.  Ev.,  §  480. 


142  ON   PROOF  [part  II 

are  proved  by  copies  of  the  record,  certified 
by  the  officer  having  the  custody  of  the  origi- 
nals, and  authenticated  by  the  seal  of  the 
court  to  which  they  belong.  Such  copies  are 
called  exemplifications,  and  in  the  same  state 
are  equivalent  to  the  original  record  for  all 
purposes,  excepting  that  the  original  record 
should  be  used  in  the  court  where  the  pro- 
ceedings were  liad.^^  Exemplifications  of  the 
records  of  courts  of  sister  states  of  the  Union, 
if  certified  under  the  act  of  congress,^-  or  in 
any  other  manner  allowed  by  the  laws  of  the 
state  in  which  they  are  offered  as  evidence,^ ^ 
are  entitled  to  the  same  faith  and  credit  as 
they  have  by  law  in  the  courts  of  the  state 
from  which  they  are  taken.^'*  In  all  such 
cases,  the  seal  of  the  court  being  judicially 
noticed,  no  extraneous  proof  of  its  genuine- 
ness is  ever  required.^^  The  usual  mode  of 
authenticating  foreign  laws  and  judgments 
is  either  by  an  exemplification  of  a  copy  under 
the  great  seal  of  the  state,  or  by  a  copy 
proved  to  be  a  true  copy  by  a  witness  who  has 

51  1  Gr.  Ev.,  §§  501,  502;  Abb.  Tr.  Ev.,  ch.  xxix 
1-4. 

52  Eev.  Stat.  U.  S.,  §  905. 

53  Abb.  Tr.  Ev.,  ch.  xxix  15-30 ;  1  Gr.  Ev.,  §  505. 

54  Id.,  §  504. 

55  Id.,  §  503. 


CHAP,  III]  CERTIFIED    COPIES  143 

compared  it  with  the  original,  or  by  the  cer- 
tificate of  an  officer  properly  authorized  by 
law  to  give  a  copy,  which  certificate  must  it- 
self be  duly  authenticated."^ 

§  70.  Rule  requiring  primary  evidence  of 
the  contents  of  documents  modified  by  statutes 
making  certified  copies  admissible  in  evidence. 
— "\\'lienever  special  provision  has  been  made 
by  statute  for  proof  of  the  contents  of  any 
document  in  any  other  manner  than  by  pri- 
mary evidence,  the  rule  excluding  secondary 
evidence  is  of  course  so  far  modified  as  to 
render  it  admissible  under  the  circumstances 
and  to  the  extent  so  authorized  by  the  statute. 
Thus,  the  laws  of  all  the  states  authorize  cer- 
tain deeds  and  other  instruments  to  be  re- 
corded, and  certified  copies  made  from  the 
register  to  be  used  in  evidence  for  purposes 
and  under  certain  circumstances  as  set  forth 
in  such  laws.  As  the  terms  of  these  laws 
vary  in  the  different  states,  the  admissibility 
in  evidence  of  a  certified  copy  of  an  instru- 
ment made  from  the  register  can  only  be  de- 
termined in  any  particular  case  by  a  reference 
to  the  statute  under  which  it  has  been  re- 
corded. 

56  1  Gr.  Ev.,  §§  488,  514;  Church  v.  Hubbard,  2 
Cranch,  237. 


144  ON  PROOF  [part  II 

§  71.  Secondary  evidence  of  documents  re- 
ceived in  certain  cases  where  party  has  shown 
his  inability  to  produce  the  original  in  court- 
Notice  to  adverse  party  to  produce  documents. 

— Secondary  evidence  of  the  contents  of  docu- 
ments is  received  also  in  certain  other  cases 
where  the  party  offering  it  has  first  shown  his 
inability  to  produce  the  original  in  court,  by 
proof  (1)  that  the  original  is  of  such  a  nature 
as  not  to  be  easily  movable ;  as  in  the  case  of 
a  libel  written  on  a  wall,  or  an  inscription 
upon  a  tombstone ;  ^■^  or  (2)  that  it  is  in  the 
possession  of  a  person  living  beyond  the  ju- 
risdiction of  the  court  ;  ^^  or  (3)  that  it  has 
been  destroyed ;  ^^  or  (4)  that  it  has  been  lost, 
and  proper  search  has  been  made  for  it ;  *"' 
or  (5)  that  it  is  in  the  possession  or  power 
of  a  stranger  to  the  cause,  not  legally  bound 
to  produce  it,  and  who,  after  having  been 
served  with  a  subpoena  duces  tecum,  or  having 
been  sworn  as  a  witness,  and  having  admitted 

57  Ste.  Dig.,  art.  71;  Tay.  Ev.,  §438;  Whar.  Ev., 
§  82 ;  North  Brookfield  v.  Warren,  16  Gray,  171,  174. 

68  Biirton  V.  Driggs,  30  Wall.,  125,  134. 

B9  Ste.  Dig.,  art.  71 ;  1  Gr.  Ev.,  §  558 ;  Riggs  v. 
Tayloe,  9  Wheat.,  483. 

«o  Ste.  Dig.,  art.  71 ;  1  Gr.  Ev.,  §  558 ;  Tayloe  v. 
Eiggs,  1  Pet.,  591,  596;  Patterson  v.  Winn,  5  Pet., 
233,  240,  242. 


CHAP.  Ill]  NOTICE    TO    PRODUCE  145 

it  to  be  in  court,  refuses  to  produce  it ;  ®^  or 
(6)  that  it  is  iu  the  possession  or  control  of 
the  adverse  party,  who  refuses  to  produce  it, 
after  having*  been  given  such  notice  to  do  so 
as  the  court  regards  reasonably  sufficient  to 
enable  it  to  be  procured. ^^  The  notice  re- 
quired in  the  latter  case  may  be  given  either 
verbally  or  in  writing,  and  if  in  writing,  may 
be  served  either  upon  the  party  himself  or  his 
attorney.®^  The  object  of  giving  the  notice  is 
to  enable  the  party  who  has  the  doc- 
ument to  produce  it,  if  he  likes,  at 
the  trial,  and  thus  to  secure  the  best 
evidence  of  its  contents;  and  therefore 
formal  notice  is  unnecessary  whenever 
such  party  has  the  document  in  court,^"*  or 
when  the  action  is  founded  upon  the  assump- 
tion that  it  is  in  his  possession  or  power,  and 
requires  its  production ;  as,  for  example,  in 
trover  for  a  bill  of  exchange.''^     Nor  is  any 

61  Ste.  Dig.,  art.  71 ;  1  Gr.  Ev.,  §  558;  1  Whar.  Ev., 
§  150;  Brandt  v.  Klein,  17  Johns.,  35. 

«2  Ste.  Dig.,  art.  71;  1  Gr.  Ev.,  §  560;  Turner  v. 
Yates,  16  How.,  14,  26;  Morrison  v.  Whiteside,  17 
Md.,  542;  79  Am.  D.,  661;  Scott  v.  Christianson,  49 
Ore.,  223,  227;  89  P.,  376;  124  Am.  St.  E.,  1041, 
1045. 

63  1  Gr.  Ev.,  §  562. 

6^  1  Whar.  Ev.,  §  155;  McPherson  v.  Rathbone,  7 


146  ON    PROOF  [part  II 

notice  required  to  be  given  when  the  docu- 
ment to  be  proved  is  itself  a  notice.^^  This 
exception  appears  to  have  been  originally 
adopted  in  regard  to  notices  to  produce,  for 
the  obvious  reason  that,  if  a  notice  to  pro- 
duce such  papers  were  necessary,  the  series 
of  notices  would  become  infinite;  but  why  it 
was  subsequently  extended  by  the  judges  to 
notices  of  other  kinds  is  not  by  any  means  so 
clear.^^  The  effect  of  a  refusal  to  produce  a 
document  after  due  notice  is  not  only  to  en- 
able the  other  party  to  prove  its  contents  (if 
otherwise  relevant)  by  secondary  evidence, 
but  it  debars  the  party  so  refusing  from  af- 
terwards putting  the  original  in  evidence 
without  the  consent  of  his  adversary ;  ^^  for 
were  this  permitted,  he  might  hold  back  the 

Wend.,  216,  219;  Ehoads  v.  Selin,  4  Wash.  C.  C, 
715,  718;  20  Fed.  Cas.,  p.  631. 

65  Ste.  Dig.,  art.  72 ;  1  Gr.  Ev.,  §  561 ;  Tay.  Ev., 
§  452;  Lawson  v.  Bachman,  81  N.  Y.,  616;  Dana  v. 
Conant,  30  Vt.,  246,  257. 

66  Ste.  Dig.,  art.  72;  Eagle  Bank  v.  Chapman,  3 
Pick.,  180,  182;  Morrow  v.  Com.,  48  Pa.  St.,  305, 
308. 

67  Tay.  Ev.,  §  450 ;  2  Elliott  Ev.,  §  1440. 

68  Ste.  Dig.,  art.  139;  Tay.  Ev.,  §1818;  Doe  v. 
Hodgson,  12  A.  &  E.,  135;  Doon  v.  Donalier,  113 
Mass.,  151. 


CHAP.  Ill]  PKODUCTION  ON   NOTICE  147 

document  until  he  saw  whether  the  secondary 
proof  would  be  favorable  or  unfavorable  to 
him,  and  thus  obtain  an  unfair  advantage 
over  his  opponent.®^  On  the  other  hand, 
when  a  document  has  been  produced  upon 
notice,  this  fact  prima  facie  obviates  the  ne- 
cessity of  any  proof  of  its  genuineness  by  the 
opposite  party ;  '^°  and  when  the  latter  has  in- 
spected it  so  as  to  become  acquainted  with 
its  contents,  he  is  bound,  if  it  be  relevant,  to 
give  it  as  evidence,  if  the  party  producing  it 
require  him  to  do  so ;  '^  for  it  would  be  un- 
just to  allow  a  party  to  pry  into  the  affairs 
of  his  adversary  without  at  the  same  time 
subjecting  him  to  the  risk  of  making  whatever 
he  inspects  evidence  for  both  sidesJ^ 

69  Whar.  Ev.,  §  157;  2  Elliott  Ev.,  §  1435. 

■^oWhar.  Ev.,  §156;  Betts  v.  Badger,  12  John., 
223;  7  Am.  D.,  309;  St.  John  v.  Insurance  Co.,  2 
Duer,  419.  But  see  Rhoads  v.  Selin,  4  Wash.  C.  C, 
715;  20  Fed.  Cas.,  p.  631. 

71  Ste.  Dig.,  art.  138;  Whiteside  v.  Momson,  17 
Md.,  452 ;  79  Am.  D.,  661 ;  Clark  v.  Fletcher,  1  Allen, 
53,  57 ;  Jordan  v.  Wilkins,  2  Wash.  C.  C,  482,  484, 
n.;  13  Fed.  Cas.,  p.  1112;  Wilbers  v.  Gillespy,  7  S. 
&  E.,  10,  14.  But  see  Austin  v.  Thompson,  45  N. 
H.,  113,  116. 

72Tay.  Ev.,  §  1817;  2  Elliott  Ev.,  §  1445,  etc. 


148  ON    PROOF  [PAliT  II 

§  72.  Degrees  of  secondary  evidence  recog- 
nized in  America,  but  not  in  England.— Ac- 
cording to  the  English  decisions,  when  sec- 
ondary proof  of  the  contents  of  a  document 
becomes  admissible  in  any  of  the  cases  men- 
tioned in  the  preceding  section,  it  may  be 
made  either  by  a  copy  proved  to  be  correct, 
or  by  the  oral  testimony  of  a  witness  who  has 
himself  seen  it,'^^  no  degrees  in  secondary  evi- 
dence being  recognized;  but  many  of  the 
courts  in  the  United  States  have  not  gone  this 
length  f'^^  and  the  American  doctrine,  as  de- 
duced from  the  various  authorities,  seems  to 
be,  that  if,  from  the  nature  of  the  case,  it  is 
manifest  that  a  more  satisfactory  kind  of 
evidence  exists,  the  party  will  be  required  to 
produce  it ;  but  where  the  nature  of  the  case 
does  not  of  itself  disclose  the  existence  of  such 
better  evidence,  the  objector  must  not  only 
prove  its  existence,  but  also  show  that  it  was 
known  to  the  other  party  in  season  to  have 
been  produced  at  the  trialJ^ 

7  3  Ste.  Dig.,  art.  71. 

74  Cornett  v.  Wilhams,  20  Wall.,  226,  246;  Harvey 
V.  Williams,  28  Ala.,  250;  65  Am.  D.,  344;  United 
States  V.  Britton,  2  Mason,  464,  468;  24  Fed.  Cas., 
p.  1239. 

75  1  Gr.  Ev.,  §  84;  note;  1  Whar.  Ev.,  §  90;  2 
Wigmore  Ev.,  §  1268. 


CHAP.  Ill]  SECONDARY    EVIDENCE  149 

§  73.  Secondary  evidence  may  be  given  of 
the  general  result  of  a  collection  of  documents 
too  numerous  to  be  conveniently  examined  in 
court.  — The  only  remaining  case  in  which  sec- 
ondary evidence  can  be  given  of  the  contents 
of  documents,  is  where  the  fact  to  be  proved 
is  the  general  result  of  voluminous  accounts 
or  of  a  greater  number  of  documents  than 
can  be  conveniently  examined  in  court ;  as  that 
bills  of  exchange  have  been,  by  certain  par- 
ties, invariably  drawn  in  the  same  way;  or 
that  an  examination  of  a  merchant's  books 
and  securities  showed  him  to  be  solvent  or  in- 
solvent at  a  particular  time.  In  such  cases, 
when  the  general  result  sought  to  be  proved 
is  one  capable  of  being  ascertained  by  calcula- 
tion, it  may  be  testified  to  without  the  pro- 
duction of  the  documents,  by  any  person  who 
has  examined  them,  and  who  is  skilled  in 
making  such  examinations.'^^  This  exception, 
which  is  allowed  simply  as  a  matter  of  con- 
venience, and  to  save  the  time  of  the  court 

7«  Ste.  Dig.,  art.  71 ;  1  Gr.  Ev.,  §  93 ;  Tay.  Ev., 
§  462;  Burton  v.  Driggs,  20  Wah.,  125,  136;  Boston 
&  W.  R.  R.  Corp.  V.  Dana,  1  Gray,  83,  104;  Chicago, 
etc.,  R.  R.  Co.  V.  Wolcott,  141  Ind.,  267,  278 ;  39  N. 
E.,  451 ;  50  Am.  St.  R.,  320,  327 ;  Blum  v.  State, 
94  Md.,  375,  389 ;  50  A.  567 ;  56  L.  R.  A.,  322. 


150  ON    PROOF  [part  II 

from  being  needlessly  taken  up  by  tedious  in- 
vestigations, which  can  be  better  and  more 
satisfactorily  made  by  one  or  two  individuals 
out  of  court,  only  applies  to  cases  where  the 
general  result  to  be  ascertained  is  a  mere  mat- 
ter of  calculation,  and  does  not  extend  to  cases 
where  it  is  a  matter  of  judgment  about  which 
persons  equally  honest  might  arrive  at  dif- 
ferent conclusions. 

§  74.  Oral  testimony  may  not  be  given  to 
vary  the  terms  of  a  written  contract.— When- 
ever the  terms  of  any  contract  or  grant  which 
the  parties  have  put  in  writing  are  sought  to 
be  proved  by  a  party  thereto,  or  his  repre- 
sentative in  interest,  for  the  purpose  of  en- 
forcing, varying  or  denying  any  civil  right  or 
liability  thereunder,  such  terms  may  not  be 
proved  otherwise  than  by  the  writing  itself, 
or  by  secondary  proof  of  its  contents  in  those 
cases  where  such  secondary  evidence  would 
be  admissible  under  the  rules  already  given.'^^ 
This  very  important  rule  of  evidence  is  noth- 
ing more  than   another  application  of  the 

"  Ste.  Dig.,  arts.  90,  92 ;  Cornwall,  etc.,  E.  E.'s 
Appeal,  125  Pa.  St.,  232;  17  A.,  427;  11  Am.  St.  R., 
889;  Barreda  v.  Silsbee,  21  How.,  146,  169;  Mc- 
Master  v.  Insurance  Co.,  55  IST.  Y.,  222;  14  Am.  R., 
239. 


CHAP.  Ill]  CONTRACTS    IX    WRITING  151 

principle  requiring  all  facts  to  be  proved  by 
the  best  kind  of  evidence  attainable,  the  law 
very  sensibly  assuming  that  whenever  the 
parties  to  a  contract  have  deliberately  put  it 
in  writing,  such  writing  is,  as  between  them, 
better  evidence  of  what  they  mutually  agreed 
to,  than  the  mere  recollections  of  any  person 
who  was  present  when  such  agreement  was 
made,  whether  a  party  to  it  or  notJ^  And 
the  same  reasoning  which  excludes  oral  evi- 
dence as  a  substitute  for  the  written  state- 
ment of  the  terms  of  an  agreement,  equally 
excludes  it  when  sought  to  be  introduced  for 
the  purpose  of  contradicting,  altering,  adding 
to  or  varying  the  terms  so  reduced  to  writing ; 
for  this  would  be  to  practically  supersede  the 
written  by  oral  evidenced  ^  But  the  rule  mak- 
ing the  written  contract  the  exclusive  evi- 
dence of  what  the  parties  agreed  to  when 
they  executed  it,  does  not  by  any  means  pre- 
vent them  from  showing  such  agreement  to 
have  been  procured  by  fraud  or  intimidation, 
or  that  by  reason  of  illegality,  failure  or  want 
of  consideration,  want  of  due  execution,  want 

78  1  Gr.  Ev.,  §  87 ;  1  Whar.  Ev.,  §  60. 

79  1  Gr.  Ev.,  §  875 ;  Tay.  Ev.,  §  1133 ;  2  Whar.  Ev., 
§  1014;  Forsythe  v.  Kimball,  91  U.  S.,  291;  Sei*?  v. 
Brewers'  Refrig.  Co.,  141  U.  S.,  510,  517. 


152  ON  PROOF  [part  II 

of  capacity  on  the  part  of  any  of  the  contract- 
ing parties,  mistake  in  fact  or  law,  or  any 
other  matter,  it  is  invalid;  for  the  purpose 
and  effect  of  such  evidence  is  not  to  contra- 
dict or  vary  the  terms  of  the  writing,  but  to 
disprove  its  legal  existence  or  rebut  its  ope- 
rations.^*' And  so,  also,  it  may  be  shown  by 
oral  evidence  that  there  was  a  separate  oral 
agreement  between  the  same  parties,  consti- 
tuting a  condition  precedent  to  the  attaching 
of  any  obligation  under  any  written  contract, 
grant  or  disposition  of  property  which  may 
be  in  question,  and  that  such  condition  prece- 
dent was  not  performed;  for  this  is  in  effect 
not  to  vary,  or  give  inferior  evidence  of  the 
terms  of  the  writing,  but  to  defeat  it  altogeth- 
er by  showing  that  the  parties  never  intended 
its  terms  to  be  operative  at  all  under  the  exist- 
ing state  of  facts ;  *^  thus,  where  A.  contracted 

80  Ste.  Dig.,  art.  90;  1  Gr.  Ev.,  §284;  1  Starkie 
Ev.,  p.  *671;  2  Whar.  Ev.,  §§930-935;  Martin  v. 
Clark,  8  R.  I.,  389 ;  5  Am.  R.,  586 ;  Union  Mut.  Ins. 
Co.  V.  Wilkinson,  13  Wall.,  222,  231 ;  Fire  Ins.  Asso. 
V.  Wickham,  141  U.  S.,  564,  577;  1  Ell.  Ev.,  §  573. 

81  Ste.  Dig.,  art.  90 ;  2  Whar.  Ev.,  §  927 ;  Tay.  Ev., 
§  1038 ;  Pym  v.  Campbell,  6  E.  &  B.,  370 ;  Ware  v. 
Allen,  128  U.  S.,  590;  Rearick  v.  Swinheart,  111  Pa. 
St.,  233;  51  Am.  D.,  540;  Burke  v.  Dulany,  153  U.  S., 
228;  1  Ell.  Ev.,  §  575. 


CHAP.  Ill]  CONTRACTS   IN   WRITING  163 

in  writing  to  assign  to  B.  the  lease  of  a  farm 
which  the  former  held  as  tenant  of  C,  it  being 
verbally  agreed  between  them  that  this  con- 
tract was  conditional  upon  the  assent  of  the 
landlord  thereto,  and  B.  sued  A.  for  not  as- 
signing the  lease  in  pursuance  of  such  con- 
tract, A.  was  allowed  to  prove  the  condition 
as  to  C.  's  consent,  and  the  fact  that  C.  did  not 
consent.^-  Neither  does  this  rule  exclude 
oral  evidence  of  the  fact  that  a  deed  or  con- 
tract has  been  wrongly  dated ;  for  the  date  is 
ordinarily  no  part  of  the  terms  agreed  on, 
but  a  mere  statement  of  the  time  when  they 
went  into  effect,  which,  although  generally 
presumed  to  be  prima  facie  correct,  may,  like 
other  recitals  of  formal  matter  which  do  not 
involve  a  contract,  be  contradicted  by  ex- 
trinsic parol  evidence.®^ 

§  75.  This  rule  only  extends  to  writings  in- 
tended by  the  parties  as  a  binding"  statement 
of  their  transactions.— This  rule  only  extends 
to  such  writings  as  appear  to  have  been  in- 
tended by  the  parties  as  a  formal  and  binding 

82  Wallis  V.  Littell,  11  C.  B.  (N.  S.),  369. 

83Ste.  Dig.,  art.  90;  2  Whar.  Ev.,  §§976-979, 
1039;  Tay.  Ev.,  §  1150;  Kaffell  v.  Eaffell,  L.  R.,  1 
P.  &  D.,  139 ;  Deakin  v.  Holhs,  Adm'r,  7  G.  &  J., 
311,  316;  Stockham  v.  Stockham,  32  Md.,  196. 


154  ON  PROOF  [part  II 

statement  of  the  transaction  between  them, 
and  which  have  been  so  accepted  by  both 
sides  ;  and  hence  oral  evidence  of  the  terms 
of  a  verbal  contract  is  not  excluded  by  the 
fact  that  a  memorandum  of  it  was  made  in 
writing  at  the  time,  unless  such  memorandum 
was  intended  to  have  legal  effect  as  a  con- 
tract or  other  disposition  of  property;^"* 
thus,  if  A.  sells  a  horse  to  B.  with  a  verbal 
warranty  of  his  soundness,  and  gives  him  a 
paper  in  these  words,  ''Bought  of  A.  a  horse 
for  71.  2s.  6d.  A.,"  this  does  not  prevent  B. 
from  afterwards  proving  the  verbal  war- 
ranty ;^^  for  a  simple  receipt  is  ordinarily 
not  intended  as  a  statement  of  the  terms  of 
a  contract,  but  is  merely  an  acknowledgement 
of  payment  or  delivery,  which,  like  other  ad- 
missions, though  prima  facie  evidence  of  the 
fact,  may  generally  be  contradicted  by  oral 
testimony;  but  where  the  receipt  also  con- 
tains a  contract  to  do  something  in  relation 
to  the  thing  delivered,  then  it  becomes  the  best 
evidence  of  the  contract  between  the  parties, 
and,  standing  upon  the  footing  of  other  con- 
tracts in  writing,  cannot  be  contradicted  or 

84  Ste.  Dig.,  art.  90;  Tay.  Ev.,  §  1134;  2  Whar. 
Ev.,  §§  920,  926;  1  Elliott  Ev.,  §  573. 

85  Allen  V.  Prink,  4  M.  &  W.,  140. 


CHAP,  III]  CONTRACTS    IN    WRITING  156 

varied  by  parol.^^  And  even  in  those  cases 
where  the  parties  have  made  a  formal  agree- 
ment in  writing-  with  the  intention  of  being 
bound  by  its  terms,  if,  from  the  circumstances 
of  the  case,  the  court  infers  that  they  did  not 
intend  the  writing  to  be  a  complete  and  final 
statement  of  the  whole  transaction  between 
them,  evidence  may  be  given  of  any  separate 
agreement  as  to  any  matter  on  which  such 
writing  is  silent  and  which  is  not  inconsistent 
with  its  terms ;  ^'  for  this  is  neither  contra- 
dicting nor  varying  the  terms  of  the  writing, 
but  only  proving  a  contemporaneous  parol 
agreement  collateral  to  and  not  inconsistent 
with  it.  And  upon  the  same  principle,  evi- 
dence may  be  given  of  any  usage  or  custom 
affecting  the  parties  to  any  written  contract, 
by  which  incidents  not  expressly  mentioned 

8'^  1  Gr.  Ev.,  §305;  Tay.  Ev.,  §1134;  Fire  Ins. 
Assoc.  V.  Witham,  141  U.  S.,  564,  581;  Henry  v. 
Henry,  11  Ind.,  236;  71  Am.  D.,  354;  Stapleton  v. 
King,  33  Iowa,  28;  11  Am.  R.,  109. 

8^  Ste.  Dig.,  art.  90 ;  Tay.  Ev.,  §  1038 ;  Abb.  Tr. 
Ev.,  ch.  xvi  8;  Lindley  v.  Lacey,  17  C.  B.  (N.  S.), 
578;  Morgan  v.  Griffith,  L.  R.,  6  Exc,  70;  Chapin  v. 
Dobson,  78  N.  Y.,  74;  34  Am.  R.,  512;  Cobb  v. 
Wallace,  5  Cold.,  539;  98  .Am.  D.,  435;  Durkin  v. 
Cobleigh,  156  Mass.,  108;  30  N.  E.,  474;  32  Am.  St. 
R.,  436;  17  L.  R.  A.,  270. 


156  ON  PROOF  [part  II 

in  it  are  annexed  to  all  contracts  of  that  de- 
scription as  implied  therein;  unless  the  an- 
nexing of  such  incident  would  be  repugnant 
to  or.  inconsistent  with  the  express  terms  or 
legal  effect  of  the  writing  itself.^^  Thus,  to 
a  shipping  contract  it  is  admissible  to  annex 
as  an  incident,  by  proof  of  usage,  the  cus- 
tomary method  of  engaging  and  paying 
crews  ;^^  and  though  a  promissory  note  is 
silent  as  to  any  days  of  grace,  parol  evidence 
of  the  known  and  established  usage  of  the 
country  or  place  where  it  is  payable,  is  ad- 
missible to  show  on  what  day  the  grace  ex- 
pired.^^  Such  evidence  is  admitted  upon  the 
''presumption  that  the  parties  did  not  intend 
to  express  in  writing  the  whole  of  the  con- 
tract by  which  they  intended  to  be  bound,  but 
to  contract  with  reference  to  those  known  us- 
ages, ' '  ^^   which  differ  from  the  parol  con- 

88  Ste.  Dig.,  art.  90;  1  Gr.  Ev.,  §  394;  Tay.  Ev., 
§§  1168-1170;  Bliven  v.  N.  E.  Screw  Co.,  23  How., 
420,  431;  Thompson  v.  Riggs,  5  Wall.,  663,  679; 
Moran  v.  Prather,  23  Wall.,  492,  503 ;  Smith  v.  Clews, 
114  N.  Y.,  190;  21  N.  E.,  160;  11  Am.  St.  K,  627; 
4  L.  R.  A.,  392. 

8»  Eldredge  v.  Smith,  13  Allen,  140. 

»o  Eenner  v.  Bank,  9  Wheat.,  581. 

»i  Hutton  V.  Warren,  1  M.  &  W.,  466,  per  Parke, 
B.,  p.  475. 


OHAP.  Ill]  CONTRACTS    IX    WRITING  157 

temporaneous  agreements  as  to  collateral 
matters  which  we  have  just  been  considering, 
only  in  that  they  attach  by  implication  instead 
of  by  express  stipulation.^^  But  such  usage 
must  be  consistent  with  the  rules  of  law,  for 
otherwise  the  parties  will  not  be  presumed  to 
have  contracted  with  reference  to  it  ;  and  it 
must  also  be  consistent  with  the  terms  of  the 
written  contract,  for  it  is  always  optional  to 
the  parties  to  exclude  the  usage,  if  they  think 
fit,  and  to  frame  their  contract  so  as  to  be 
repugnant  to  its  operation.^^  Nor  does  the 
rule  under  consideration  exclude  proof  of  any 
distinct  subsequent  oral  agreement  to  rescind 
or  modify  any  such  written  contract,  grant  or 
disposition  of  property,  provided  that  such 
agreement  is  not  invalid  under  the  statute 
of  frauds  or  otherwise.^^  For  this,  it  will  be 
observed,  is  not  to  substitute  parol  proof  for 
the  written  evidence  of  the  terms  of  the  origi- 
nal contract,  but  to  show  that  the  parties  have 
since  modified  those  terms,  it  being  a  well 

92  2  Whar.  Ev.,  §  969 ;  1  Elliott  Ev.,  §  607. 

»3  Anson  on  Contracts,  238;  Oelrichs  v.  Ford,  23 
How.,  49. 

94  Ste.  Dig.,  art.  90 ;  Cununings  v.  Arnold,  3  Mete, 
486;  37  Am.  D.,  155;  Bannon  v.  Aultman,  80  Wis., 
307;  21  N.  AV.,  967;  27  Am.  St.  R.,  37. 


158  ON  PROOF  [part  II 

recognized  principle  of  common  law,  that  any 
obligation  by  writing  which  is  not  under  seal 
may,  in  the  absence  of  statutory  interference, 
be  either  totally  or  partially  disolved  or  mod- 
ified before  breach  by  a  subsequent  oral 
agreement.*^^  In  cases  where  by  reason  of 
the  original  contract  being  under  seal,  or  on 
account  of  the  provisions  of  the  statute  of 
frauds  or  other  express  legislation,  such  sub- 
sequent oral  agreement  would  be  invalid  at 
law,  it  could  not,  of  course,  be  proved  in  evi- 
dence. 

§  76.  And  to  controversies  between  the 
parties  to  the  instrument  and  those  claiming 
under  them.— It  must  be  observed  that  this 
rule  only  applies  to  controversies  between  the 
parties  to  the  written  instrument  and  those 
claiming  under  them ;  ^^  for  the  rule  being 
founded  upon  the  theory  that,  because  the 
parties  have  made  such  writing  the  authentic 

95Tay.  Ev.,  §1142;  Whar.  Ev.,  §§1017,  1018; 
Goss  V.  Lord  Nugent,  3  B.  &  Ad.,  58,  65,  66. 

96  Ste.  Dig.,  art.  92;  1  Gr.  Ev.,  §  279;  Tay.  Ev.. 
§1149;  Whar.  Ev.,  §923;  Barreda  v.  Silsbee,  21 
How.,  146,  169;  McMasters  v.  Insurance  Co.,  55  N. 
Y.,  222;  14  Am.  E.,  239;  Coleman  v.  Pike  Co.,  83 
Ala.,  236 ;  3  So.,  755 ;  3  Am.  St.  E.,  746 ;  Bruce  v. 
Eoper  Lumber  Co.,  87  Va.,  381;  13  S.  E.  153;  24 
Am.  St.  E.,  657;  1  Elliott  Ev.,  §  572. 


CHAP.  Ill]  CONTRACTS    IN    WRITING  159 

memorial  of  their  contract,  it  must  therefore 
be  taken  as  between  them  to  speak  the  truth, 
and  the  whole  truth,  in  relation  to  its  sub- 
ject-matter, there  is  no  reason  why  strangers 
who  have  not  come  into  the  agreement  should 
be  bound  by  it,  and  consequently,  when  their 
rights  are  concerned,  they  are  at  liberty  to 
show  that  the  written  instrument  does  not 
disclose  the  very  truth  of  the  matter.  And  if 
they  be  thus  at  liberty  when  contending  with 
a  party  to  the  transaction,  he  must  be  equally 
free  when  contending  with  them.  Both  must 
be  bound  by  this  conventional  law,  or 
neither.^^  Thus,  the  existence  and  terms  of  a 
partnership,  though  formed  by  a  written  con- 
tract, may  be  proved  by  parol  evidence,  ex- 
cepting in  controversies  between  the  alleged 
partners  and  their  representatives ;  ^^  and  so, 
also,  the  fact  of  an  agency  having  been  cre- 
ated by  a  written  authority  does  not  prevent 
third  parties  from  proving  it  by  parol,  except- 
ing in  cases  where  a  writing  is  essential  to  its 
validity.    And  even  in  cases  where  the  contro- 

»7  Eeynolds  v.  Magness,  2  Ired.,  26,  30. 

98  Abb.  Tr.  Ev.,  ch.  ix  2,  etc. ;  McGregor  v.  Cleve- 
land, 5  Wend.,  475;  Gilbert  v.  Whedden,  20  Me., 
368;  Button  v.  Woodman,  9  Cush.,  255;  57  Am.  D., 
46. 


160  ON    PROOF  [part  II 

versy  is  between  the  parties  to  the  written 
contract  or  their  representatives,  the  rule  is 
only  applicable  where  some  civil  right  or  lia- 
bility dependent  upon  its  terms  is  in  question ; 
for  the  binding  effect  of  a  contract  only  ex- 
tends to  the  civil  rights  and  liabilities  of 
the  parties  thereto,  and  of  those  claiming 
through  them.^^  Hence,  when  A.  prosecutes 
B.  criminally  for  obtaining  money  from  him 
under  false  pretenses  as  a  premium  for  enter- 
ing into  partnership  with  him,  A.  is  not  pre- 
vented from  testifying  that  he  was  induced  to 
pay  200^.  and  enter  the  partnership  by  the 
false  representation  of  B.  that  he  had  ob- 
tained an  appointment  as  emigration  agent  at 
a  salary  of  600?,  per  annum,  notwithstanding 
the  fact  that  the  deed  of  partnership  executed 
by  A.  and  B.,  which  was  offered  in  evidence, 
recited  the  200Z.  as  the  consideration  for  the 
partnership,  and  made  no  mention  whatever 
of  the  emigration  agency.^ "'^ 

§  77.  How  far  the  meaning  of  a  writing  may 
be  explained  by  oraJ  testimony.— Although, 
as  we  have  already  seen,  parol  evidence  is  in- 
admissible, as  between  the  parties,  to  con- 
tradict, add  to  or  vary  the  terms  of  any  agree- 

»»  Ste.  Dig.,  art.  92 ;  1  Elliott  Ev.,  §  577. 
lo*^  Reg.  V.  Adamson,  2  Moody,  286. 


CHAP.  l]        INTERPRETATIOX    OF   WRITINGS  161 

ment  or  grant  which  they  have  reduced  to 
writing,  jet,  within  certain  limits,  parol  and 
other  extrinsic  evidence  is  admissible  to  ex- 
plain the  meaning  which  the  parties  intended 
to  express  by  the  terms  employed,  and  to 
identify  the  persons  and  things  thereby  re- 
ferred to.^°^  These  limits  are,  first,  that 
where  the  words  used  have  a  plain  legal 
meaning,  it  is  not  permissible  to  introduce 
evidence  that  they  were  intended  to  be  used 
in  a  peculiar  sense,  unless  the  context  or  the 
circumstances  under  which  they  were  used 
clearly  show  that  the  parties  did  not  mean 
them  to  be  understood  in  their  ordinary  legal 
acceptation;  ^^2  since  persons  must  be  pre- 
sumed to  have  intended  the  natural  and 
proper  meaning  of  the  words  used  by  them, 
unless  the  contrary  plainly  appear;  and  sec- 
ondly, if  the  words  of  a  document  are  so  am- 
biguous as  to  be  unmeaning  in  themselves, 
no  evidence  can  be  given  to  show  what  its 

101  Tay.  Sv.,  §  1158;  1  Elliott  Ev.,  §  597. 

102  Tay.  Ev.,  §  1165;  Ste.  Dig.,  art.  91  (2),  (5)  ; 
1  Gr.  Ev.,  §295;  2  Wliar.  Ev.,  §§  924,  940;  Moran 
V.  Prather,  23  Wall.,  492,  501;  Wilmering  v.  Mc- 
Gaughey,  30  Iowa,  205;  6  Am.  E.,  673,  note;  Arm- 
strong V.  Lake  Champlain,  etc.,  Co.,  147  N".  Y.,  495 ; 

42  N.  E.   186 ;  47  Am.  St.  R.,  683. 
11 


162  ON    PROOF  [part  II 

author  intended  to  say;^'^^  for  this  would  be 
adding  to  the  terms  of  the  document  instead 
of  explaining  them.  Within  these  limits, 
however,  oral  evidence  may  be  given  of  the 
meaning  of  illegible  or  not  commonly  intelli- 
gible cliaracters,  of  foreign,  obsolete,  tech- 
nical and  provincial  expressions,  of  abbrevia- 
tions and  of  common  words,  which  from  the 
context  appear  to  have  been  used  in  a  pecul- 
iar sense;  ^^^  for  this  neither  adds  to  nor  va- 
ries the  terms  actually  used,  but  merely  en- 
ables the  court  to  discover  the  meaning  in- 
tended to  be  conveyed  by  them.^"^  And  so, 
also,  in  order  to  ascertain  the  relation  of  the 
words  of  a  document  to  facts,  every  fact  may 
be  proved  to  which  it  refers,  or  may  probably 
have  been  intended  to  refer,  or  which  iden- 
tifies any  person  or  thing  mentioned  in  it;  ^"® 
for  to  enable  the  judge  to  discover  the  in- 

103  Ste.  Dig.,  art.  91  (3);  Peisch  v.  Dickson,  1 
Mason,  9 ;  19  Fed.  Cas.,  p.  123 ;  Neweome  v.  Kline, 
11  G.  &  J.,  457;  37  Am.  D.,  74. 

104  Ste.  Dig.,  art.  91  (2)  ;  Tay.  Ev.,  §§  1159-1164; 
Stoops  V.  Smith,  100  Mass.,  63,  66;  1  Am.  R.,  857; 
Thorington  v.  Smith,  8  Wall.,  1,  12. 

105  Tay.  Ev.,  §  1158;  1  Elliott  Ev.,  605. 

106  Ste.  Dig.,  art.  91  (4)  ;  Eeed  v.  Insurance  Co., 
95  U.  S.,  23,  50 ;  Maryland  v.  B.  &  0.  R.  R.  Co.,  22 
Wall.,  105,  113. 


CHAP.  Ill]    INTERPBETATION  OF   WRITINGS  163 

tention  of  the  writer  as  evidenced  by  the 
words  he  has  used,  lie  must,  as  far  as  possible, 
put  himself  in  the  writer's  place,  and  then  see 
how  the  terms  of  the  instrument  affect  the 
subject-matter.^ "^^  So  that  whenever,  in  a 
written  instrument,  the  description  of  the 
person  or  thing  intended  is  applicable  with 
legal  certainty  to  each  of  several  objects,  not 
only  such  extrinsic  facts,  but  even  proof  of 
the  declarations  of  the  author,  become  admis- 
sible to  establish  which  of  such  subjects  he 
meant  to  refer  to;  ^^^  but  in  cases  where,  by 
reason  of  inaccuracy  in  the  description  of  a 
person  or  thing,  it  is  partly  applicable  and 
partly  inapplicable  to  each  of  several  sub- 
jects, although  such  extrinsic  facts  may  be 
proved  to  show  which  of  them  was  meant, 
evidence  of  the  author's  declaration  of  in- 
tention is  not  admissible  for  this  purpose.^"'' 
So,  also,  the  same  rule  as  to  extrinsic  facts 
applies  in  cases  where,  the  description  being 

107  Tay.  Ev.,  §§  1082,  1194;  1  Elliott  Ev.,  §  602. 

108  Tay.  Ev.,  §  1226;  Wigr.,  Wills,  160;  Ste.  Dig., 
art.  91  (8)  ;  Mech.  Bank  of  Alexandria  v.  Bank  of 
Columbia,  5  Wheat.,  326,  337;  Miller  v.  Stevenson, 
100  Mass.,  518;  1  Am.  E.,  139. 

109  Tay.  Ev.,  §1226;  Ste.  Dig.,  art.  91  (7);  2 
Whar.  Ev.,  §  1001 ;  Doe  v.  Hiseocks,  5  M.  &  W.,  33 ; 
Stringer  v.  Gardiner,  27  Beav.,  35. 


164  ON    TROOF  [part    II 

partly  correct  and  partly  incorrect,  the  cor- 
rect part  is  sufficient  to  identify  the  subject 
intended,  while  the  incorrect  part  is  inap- 
plicable  to  any  subject,  in  which  cases  the 
instrument  will  be  rendered  operative  by  re- 
jecting the  erroneous  statement.^  ^'^  And 
finally,  in  cases  where  courts  of  equity  raise  a 
presumption  against  the  apparent  intention 
of  a  written  instrument,  such  presumption 
may  be  repelled  by  extrinsic  evidence, 
whether  of  declarations  or  of  collateral  facts, 
showing  the  intention  to  be  otherwise;  ^^^  for 
this  is  not  to  contradict  the  language  used  by 
the  parties,  but  simply  to  do  away  with  an 
artificial  presumption  of  law  with  regard  to  it. 

110  Tay.  Ev.,  §  1236;  Wigr.,  Wills,  67,  70;  2  Whar. 
Ev.,  §  945 ;  Fitzpatrick  v.  Fitzpatrick,  36  Iowa,  674 ; 
14  Am.  E.,  538;  Whitcomb  v.  Eoderman,  156  111., 
116 ;  40  N.  E.,  553 ;  47  Am.  St.  E.,  181 ;  28  L.  E.  A., 
149. 

111  Tay.  Ev.,  §1228;  Ste.  Dig.,  art.  91  (9);  2 
Whar.  Ev.,  §§973,  974;  Hurst  v.  Beach,  5  Madd., 
351,  360;  Hall  v.  Hill,  1  Dru.  &  War.,  94,  111-133. 


PART   III. 


ON  THE  PRODUCTION  AND  EFFECT  OF 
EVIDENCE. 


CHAPTER  I. 

BURDEN   OF  PROOF. 

§  78.  Burden  of  proof  lies  on  the  party  sub- 
stantially asserting  the  affirmative  of  the  issue. 
— Having  considered  the  rules  by  which  are 
determined  the  relevancy  of  facts  and  the 
kind  of  proof  by  which  they  may  be  estab- 
lished, we  now  come  to  those  regulating  the 
parties  by  whom  such  proof  must  be  pro- 
duced, the  methods  of  its  production,  and  its 
legal  effect  when  produced.  And  first,  as  to 
the  parties,  it  may  be  laid  down  as  the  general 
rule,  that  the  burden  of  proof,  lies  on  the 
party  who  substantially  asserts  the  affirma- 
tive of  the  issued  upon  the  principle  that  it  is 

1  1  Gr.  Ev.,  §  74 ;  Tay.  Ev.,  §  364 ;  1  Wliar.  Ev., 
§§  353,  356;  Costigan  v.  Eice,  2  Denio,-  609,  616;  43 
Am.  D.,  758;  1  Elliott  Ev.,  §  132. 
165 


166  PRODUCTION  OF   EVIDENCE  [PART   III 

but  reasonable  and  just  that  the  suitor  who 
relies  upon  the  existence  of  a  fact  should  be 
called  upon  to  prove  his  own  case.^  In  de- 
termining the  question  as  to  which  party  as- 
serts the  affirmative,  regard  is  had  to  the  sub- 
stance and  effect  of  the  issue,  and  not  merely 
to  its  form.^  In  other  words,  the  question  is 
which  party  makes  the  averment,  even  though 
it  be  a  negative  one,  as  a  part  of  his  case. 
An  allegation  in  the  negative  must  not  be  con- 
founded with  the  mere  denial  or  traverse  of 
an  affirmative  allegation;^  as  for  instance, 
where,  in  an  action  upon  a  covenant  by  the 
defendant  to  put  certain  repairs  upon  a  mes- 
suage which  he  held  as  tenant,  the  plaintiff 
alleged  that  the  defendant  did  not  repair,  and 
the  defendant  traversed  by  alleging  that  he 
did  repair,  the  burden  of  proof  was  held  to  be 
upon  the  plaintiff,  notwithstanding  that  his 
averment  was  negative  in  form.^     The  best 

2Tay.  Ev.,  §  364;  1  ElHott  Ev.,  §  132. 

3  1  Gr.  Ev.,  §  74;  Tay.  Ev.,  §  364;  1  Elhott  Ev., 
§  141. 

4  Best  on  Ev.,  §  271 ;  1  Elhott  Ev.,  §  141 ;  Bouldin 
V.  Melntire,  119  Ind.,  574;  21  N.  E.,  445;  12  Am. 
St.  R.,  453 ;  Gt.  West.  R.  R.  Co.  v.  Bacon,  30  111., 
347 ;  83  Am.  D.,  199. 

5  Best  on  Ev.,  §  272 ;  1  Elliott  Ev.,  §  141 ;  Soward 
V.  Leggatt,  7  C.  &  P.,  613. 


CHAP.  l]  DISPUTABLE    PRESUMPTIONS  167 

tests  for  ascertaining  on  whom  the  burden  of 
proof  lies  are,  first,  to  consider  who  would  suc- 
ceed if  no  evidence  were  given  on  either  side ; 
and  secondly,  to  examine  what  would  be  the 
effect  of  striking  out  of  the  record  the  allega- 
tion to  be  proved,  bearing  in  mind  that  the 
onus  must  lie  on  whichever  party  would  fail 
if  either  of  these  steps  were  pursued.*' 

§  79.  Except  where  a  disputable  presump- 
tion of  law  exists  in  his  favor.— To  this  rule, 
throwing  the  burden  of  proof  upon  the  party 
who  substantially  asserts  the  affirmative, 
there  are  two  exceptions.  The  first  is  in 
cases  where  a  disputable  presumption  of  law 
exists  in  favor  of  the  party  alleging  the  af- 
firmative ;  for  here,  if  no  evidence  were  given 
on  either  side,  the  latter  must  succeed  by  vir- 
tue of  this  presumption,  and  consequently 
the  burden  of  proof  is  shifted  from  him  to 
his  opponent.'^  These  presumptions  are  very 
numerous,  and  most  of  them  so  closely  con- 
nected with  the  various  branches  of  sub- 
stantive law  to  which  they  relate  as  to  be  al- 

e  Tay.  Ev.,  §  365 ;  1  Whar.  Ev.,  §  357 ;  app.  Gam- 
brill  V.  Schooley,  95  Md.,  260,  271;  52  A.,  600;  63 
L.  R.  A.,  427;  1  Elliott  Ev.,  §  132. 

^  Tay.  Ev.,  §§  367-370. 


168  PRODUCTION  OF  EVIDENCE  [PART   III 

most  unintelligible  except  in  connection  with 
them.  For  this  reason  any  attempt  to  enu- 
merate them  would  be  entirely  out  of  place  in 
the  present  work,  and  therefore  only  a  few 
of  those  that  are  of  more  general  application, 
as  well  as  of  frequent  occurrence,  will  be  here 
noticed. 

The  first  of  these  is  the  presumption  of  in- 
nocence, by  which  the  burden  of  proof  is  al- 
ways (unless  there  be  some  express  statutory 
provision  to  the  contrary)  thrown  upon  the 
party  who  either  directl}'  or  indirectly  avers 
that  any  other  person  has  been  guilty  of  any 
crime  or  wrongful  act,  even  though  such  guilt 
can  only  be  established  by  proving  a  nega- 
tive.^ To  convict  the  accused  in  a  criminal 
proceeding,  his  guilt  must  be  proved  affirma- 
tively beyond  reasonable  doubt  i^"^  but  when 
the  question  whether  or  not  a  person  has 
committed  a  crime  arises  collaterally  in  a 
civil  cause,  the  same  strictness  of  proof  is  not 
required,  and  it  is  to  be  determined  by  the 
preponderance  of  evidence,  although  even  in 
such  cases  the  burden  of  proving  the  guilt 

8  1  Gr.  Ev.,  §  35;  Tay.  Ev.,  §  113. 
®^  For  definition  of  reasonable  doubt  see  Holt  v. 
United  States,  318  U.  S.,  245,  353 ;  3  Gr.  Ev.,  §  39. 


CHAP.  l]  DISPUTABLE    PRESUMPTIONS  169 

affirmatively  is  still  imposed  upon  the  party 
who  alleges  it.* 

A  wife  who  acts  in  company  with  her  hus- 
band in  the  commission  of  a  felony  other  than 
treason  or  homicide  is  presumed  to  act  under 
his  coercion,  and  consequently  without  guilty 
intent.^« 

Every  sane  man  is  presumed  to  contem- 
plate the  natural  and  probable  consequences 
of  his  own  intentional  acts  until  the  contrary 
plainly  appears;  that  the  intent  to  murder 
is  to  be  presumed  prima  facie  from  the  de- 

®  To  this  effect  is  the  weight  of  American  author- 
ity. 2  Whar.  Ev.,  §§  1244-1246;  Abb.  Tr.  Ev.,  ch. 
xxvi,  31 ;  Scott  V.  Insurance  Co.,  1  Dill.  C.  C,  105, 
107 ;  21  Fed.  Cas.,  No.,  12,500,  p.  833 ;  Welch  v.  Jug- 
genheimer,  56  Iowa,  11;  8  N.  W.,  673;  41  Am.  R., 
76 ;  Seybolt  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  95  N.  Y., 
562;  47  Am.  R.,  75.  For  the  English  rule,  which 
has  heen  followed  in  several  of  the  states,  that  crime 
must  he  proved  beyond  a  reasonable  doubt  even  in 
civil  cases,  see  Thurtell  v.  Beaumont,  1  Bing.,  339 ; 
also  Kane  v.  Insurance  Co.,  38  N.  J.  L.,  441-446 ; 
Barton  v.  Thompson,  46  Iowa,  30;  26  Am.  R.,  131; 
Ste.  Dig.,  art.  94;  Tay.  Ev.,  §  112. 

10  1  Gr.  Ev.,  §  28;  3  id.,  §  7;  Tay.  Ev.,  §  190;  2 
Whar.  Ev.,  §  1256;  Com.  v.  Neal,  10  Mass.,  152;  6 
Am.  D.,  105;  Nolan  v.  Trayhem,  49  Md.,  460;  33 
Am.  D.,  277 ;  3  Elliott  Ev.,  §  2253. 


170  PRODUCTION  OF   EVIDENCE  [PART   III 

liberate  use  of  a  deadly  weapon;  and  the 
deliberate  publication  of  calumny  which 
the  publisher  had  no  reason  to  believe 
to  be  true  raises  the  presumption  of  malice.^  ^ 
It  is  another  general  presumption,  that 
things  once  proved  to  have  existed  in  a  par- 
ticular state  continue  to  exist  in  that  state 
until  the  contrary  be  established  by  evidence 
either  direct  or  presumptive.^^  And,  there- 
fore, where  a  person  is  once  shown  to  have 
been  living,  the  law,  in  absence  of  proof  that 
he  has  not  been  heard  of  within  the  last  seven 
years,  will,  in  general,  presume  that  he  is  still 
alive,  unless  such  a  period  had  elapsed  as 
would  make  his  age  considerably  exceed  the 

111  Gr.  Ev.,  §§18,  34;  Tay.  Ev.,  §§80-83;  2 
Whar.  Ev.,  §§  1858,  1261;  State  v.  Levelle,  34  S.  C, 
120;  13  S.  E.,  319;  27  Am.  St.  R.,  799;  Childers  v. 
San  Jose,  etc.,  Co.,  105  Cal.,  284;  38  P.,  903;  45 
Am.  St.  R.,  40;  3  Elliott  Ev.,  §  2451. 

12  Best  on  Ev.,  §405;  Whar.  Ev.,  §  1284;  1  Gr. 
Ev.,  §41;  Tay.  Ev.,  §§196,  197;  Bradner,  Ev., 
§  438;  1  Elhott  on  Ev.,  §§  109-110;  City  of  Cohoes 
v.  Del.  &  H.  Canal,  134  N.  Y.,  397 ;  31  N.  E.,  887 ; 
Re  Huss,  126  N.  Y.,  537;  27  N.  E.,  784;  Ellis  v. 
State,  138  Wise,  513;  120  N.  W.,  1110;  131  Am. 
St.  R.,  1022;  State  v.  Chittenden,  127  Wise,  468; 
107  N.  W.,  500,  511 ;  3  L.  N.  S.,  1115. 


CHAP.  l]  DISPUTABLE   PRESUMPTIONS  l7l 

ordinary  duration  of  human  life.^^  But 
when  a  person  is  shown  not  to  have  been 
heard  of  for  seven  years  by  those  (if  any) 
who,  if  he  had  been  alive,  would  naturally 
have  heard  of  him,  he  is  presumed  to  be  dead, 
unless  the  circumstances  of  the  case  are  such 
as  to  account  for  his  not  being  heard  of  with- 
out assuming  his  death.^^ 

Every  man  is  presumed  to  be  sane  in  the 
absence  of  evidence  to  the  contrary.^ '^ 

And  where  a  party  sued  upon  a  written 
contract  pleads  infancy,  he  will  be  presumed 
to  be  of  full  age,  in  the  absence  of  proof  to 
support  his  plea  afiQrmatively,^^    Whenever 

isTay.  Ev.,  §198;  2  Whar.  Ev.,  §1274;  Ham- 
mond's Lessee  v.  Inloes,  4  Md.,  138,  172-75;  O'Gara 
V.  Eisenlohr,  38  N.  Y.,  296 ;  Lowe  v.  Foulke,  103  111., 
58 ;  Young  V.  Shulenberg,  165  N.  Y.,  385,  389 ;  59 
N.  E.,  135;  80  Am.  St.  R.,  730,  733. 

14  Ste.  Dig.,  art.  99 ;  Tay.  Ev.,  §  200 ;  1  Gr.  Ev., 
§  41 ;  2  Wliar.  Ev.,  §  1276 ;  Davie  v.  Briggs,  97  U.  S., 
628,  633 ;  Sprigg  v.  Moale,  28  Md.,  497 ;  92  Am.  D., 
698;  Dowd  v.  Watson,  105  N.  C,  476;  10  S.  E., 
1101;  18  Am.  St.  E.,  920. 

15  Tay.  Ev.,  §  370;  1  Gr.  Ev.,  §  42;  2  Whar.  Ev., 
§  1252 ;  O'Connell  v.  People,  87  N.  Y.,  377 ;  41  Am. 
R.,  379;  Hiett  v.  Shull,  36  W.  Va.,  563;  15  S.  E., 
146. 

i«  1  Gr.  Ev.,  §  81 ;  Abb.  Tr.  Ev.,  ch.  lix,  20 ;  1 


172  PEODUCTION  OF  EVIDENC  [PART  III 

any  judicial  or  official  act  is  shown  to  have 
been  done  in  a  manner  substantially  regular, 
it  is  presumed  that  formal  requisites  for  its 
validity  were  complied  with.^^  Until  the  con- 
trary appears  the  law  presumes  that  the  same 
name  identifies  the  same  person  since  names 
are  used  for  the  very  purpose  of  identifying 
the  individual  to  whom  they  are  attached  and 
therefore  the  burden  of  proof  is  upon  the  de- 
fendant to  show  that  he  is  not  the  person  of 
the  same  name  against  whom  a  cause  of  ac- 
tion has  been  established  by  the  evidence;^* 

Star  Ev.,  §  591 ;  Borthwiek  v.  Carnithers,  1  T.  R., 
648;  Hartley  v.  Wharton,  11  A.  &  E.,  934;  R.  v. 
Turner,  5  M.  &  Sel.,  206. 

1^  Ste.  Dig.,  art.  101;  Tay.  Ev.,  §  124;  1  Gr.  Ev., 
§  20;  2  Whar.  Ev.,  §§  1302-1309;  Applegarth  v. 
Lexington,  etc.,  Mfg.  Co.,  117  U.  S.,  255,  264; 
Adams  v.  Cowles,  95  Mo.,  501;  8  S.  W.,  711;  6 
Am.  St.  R.,  74;  Hogue  v.  Corbit,  156  111.,  540;  41 
N.  E.,  219;  47  Am.  St.  R.,  232;  Berrenberg  v.  City 
of  Boston,  137  Mass.,  231;  50  Am.  R.,  296,  and 
note;  1  Elliott  Ev.,  §  99. 

18  Lawson  Presump.  Ev.,  Ch.  12,  Rule  57.  Rup- 
pert  v.  Penner,  35  Neb.,  587;  53  N.  W.,  598;  17  L. 
R.  A.,  824;  Ritcher  v.  Carpenter,  2  Wash.,  512;  28 
P.,  380;  26  Am.  St.  R.,  877;  Flournoy  v.  Warden, 
17  Mo.,  435.  But  as  to  presumption  in  criminal 
prosecution  see  State  v  John  Smith,  129  Iowa,  709; 


CHAP.  l]  DISPUTABLE   PRESUMPTIONS  173 

and  the  fact  that  the  name  is  differently 
spelled  makes  no  difference  if  the  pronuncia- 
tion of  the  name  is  indistinguishable  in  or- 
dinary conversation.^^  There  are  also  cer- 
tain general  disputable  presumptions  as  to 
documents ;  as  that  any  document  which  has 
been  duly  proved,  and  bears  a  date,  was  ex- 
ecuted on  that  date;  and  where  several  doc- 
uments so  proved  bear  date  on  the  same  day, 
that  they  were  executed  in  the  order  neces- 
sary to  eifect  the  object  for  which  they  were 
executed,  unless  the  circumstances  are  such 
that  collusion  as  to  the  date  might  be  prac- 
ticed, and  would,  if  practiced,  injure  any  per- 
son, or  defeat  the  object  of  any  law.^*' 

Any  document  purporting  to  be  a  deed, 
which  appears  to  have  been  duly  signed  and 

106  N.  W.,  187;  4  L.  N.  S.,  539,  with  case  note 
showing  some  conflict  of  authorities. 

^^Barnet  v.  People,  18  Ills.,  52;  65  Am.  D.,  697, 
for  extended  note  on  doetrine  of  idem  sonans,  see 
100  Am.  St.  R.,  322 ;  note  to  Thomelly  v.  Prentice, 
121  Iowa,  89;  A.  J.  Veasey  v.  Brigman,  93  Ala., 
548 ;  9  So.,  728 ;  13  L.  R.  A.,  541  and  note. 

20  Ste.  Dig.,  art.  85 ;  2  Wliar.  Ev.,  §  1312 ;  Tay. 
Ev.,  §  169 ;  Knowlton  v.  Culver,  2  Pinney,  243 ;  52 
Am.  D.,  156;  Anderson  v.  Weston,  6  Bing.  N.  C, 
302 ;  Sinclair  v.  Bagalley,  4  M.  &  W.,  318 ;  Butler  v. 
Mountgarret,  7  H.  L.  Cas.,  633,  646 


174  PRODUCTION  OF   EVIDENCE  |  PART    III 

attested,  is  presumed  to  liave  been  duly- 
sealed  and  delivered,  although  no  impression 
of  a  seal  appears  thereon.^^ 

So,  also  all  documents  purporting  or 
proved  to  be  thirty  years  old,  when  unblem- 
ished by  alterations  and  produced  from  such 
custody  as  the  judge  considers  natural  or 
proper  under  the  circumstances,  are  presumed 
to  be  genuine,  and  to  have  been  executed  and 
attested  by  the  persons  by  whom  they  purport 
to  have  been  executed.^^ 

Alterations  and  interlineations  appearing 
on  the  face  of  a  document  will,  generally 
speaking,  be  presumed  to  have  been  made 
contemporaneously  with  the  execution  of  the 
instrument;  but  any  ground  of  suspicion 
upon  the  face  of  the  instrument,  or  arising 
from  the  circumstances  of  the  case,  is  suffi- 
cient to  rebut  this  presumption,  and  throws 
upon  the  party  offering  the  document  in  evi- 
dence the  burden  of  showing  how,  when,  by 

21  Ste.  Dig.,  art.  87;  2  Wliar.  Ev.,  §  1314;  Ward  v. 
Lewis,  4  Pick.,  518. 

22  1  Gr.  Ev.,  §§  21,  142,  143,  144;  Tay.  Ev.,  §§  658, 
667;  1  Whar.  Ev.,  §§  194,  703,  732;  2  id.,  §  1359; 
Jackson  v.  Blanshaw,  3  Johns.,  292 ;  3  Am.  D.,  480 ; 
Ban-  V.  Gratz,  4  AVheat.,  213,  221 ;  Winn  v.  Patter- 
son, 9  Peterp,  663,  674:  2  Elliott  Ev.,  §  1319. 


CHAP.  l]  BURDEN   OF   PROOF  175 

whom,  and  with  what  intent,  such  alteration 
was  made.2^ 

There  is  also  a  disputable  presumption  that 
any  person  who  is  shown  to  have  acted  in  an 
official  capacity  was  duly  appointed  and  qual- 
ified to  do  so  at  that  time;  and  this  applies 
also  to  officers  of  corporations.^^ 

§  80.  Or  the  subject-matter  of  his  allega- 
tion lies  peculiarly  within  the  knowledge  of 
the  other  party.— The  second  exception  to  the 
rule  throwing  the  burden  of  proof  upon  the 
party  who  substantially  asserts  the  affirma- 
tive is,  that  in  cases  where  the  subject-mat- 
ter of  the  allegation  lies  peculiarly  within  the 
knowledge  of  one  of  the  parties,  that  party 
must  prove  it,  whether  it  be  of  an  affirmative 

23  1  Gr.  Ev.,  §§  564-568;  1  Whar.  Ev.,  §  639;  Abb. 
Tr.  Ev.,  ch.  V,  87,  ch.  xxvi,  31,  ch.  xlviii,  7 ;  Letcher 
v.  Bates,  6  J.  J.  Marsh.,  524 ;  22  Am.  D.,  92 ;  Col- 
lins V.  Ball,  82  Tex.,  259 ;  17  S.  W.,  614 ;  27  Am. 
St.  R.,  879.     See  Wilson  v.  Hayes,  40  Minn.,  531 
42  N.  W.,  467 ;  4  L.  R.  A.,  196 ;  12  Am.  St.  R.,  754 
Nat.  Ulster  Co.  Bank  v.  Madden,  114  N.  Y.,  280 
21  N.  E.,  408 ;  11  Am.  St.  R.,  633,  and  note. 

24  Ste.  Dig.,  art.  90;  Tay.  Ev.,  §  171;  3  Whar.  Ev., 
§  1315;  Bank  of  U.  S.  v.  Danddridge,  12  Wheat.,  64, 
70;  Com.  v.  Kane,  108  Mass.,  433;  11  Am.  R., 
373 ;  1  Elliott  Ev.,  §  106. 


176  PRODUCTION   OF   EVIDENCE  [PAKT    III 

or  negative  character.^^  Thus  in  proceed- 
ings, whether  civil  or  criminal,  instituted 
against  persons  for  doing  acts  which  they  are 
not  permitted  to  do  without  a  special  license 
or  authority,  as  for  selling  liquors,  exercising 
a  trade  or  profession,  or  the  like,  the  onus  of 
proving  such  license  or  authority  lies  upon 
the  defendant.-^  Although  this  rule  is  laid 
down  generally  in  most  of  the  text-books,  and 
has  frequently  been  recognized  in  opinions 
delivered  from  the  bench,  yet  the  authorities 
are  by  no  means  agreed  as  to  the  extent  to 
which  it  is  to  be  carried.^'^  Alderson,  B., 
held  ^^  that  the  rule  only  applies  to  the  weight 
of  the  evidence,  and  that  there  should  al- 
ways be  some  evidence  to  start  it,  in  order  to 
cast  the  onus  on  the  other  side,  and  such  also 
appears  to  have  been  the  view  taken  by  Chief 
Justice  Shaw  of  Massachusetts ;  ^'^  but  some 

25  Tay.  Ev.,  §  376 ;  1  Wliar.  Ev.,  §  367 ;  Great  W. 
E.  E.  Co.  V.  Bacon,  30  111.,  347;  83  Am.  D.,  199; 
City  of  Fort  Smith  v.  Dodson,  51  Ark.,  447;  11  S. 
W.,  687 ;  4  L.  R.  A.,  252 ;  14  Am.  St.  R.,  620. 

26  Tay.  Ev.,  §  377;  1  Gr.  Ev.,  §  79;  1  Whar.  Ev., 
§368;  United  States  v.  Haywood,  2  Gall.,  485;  26 
Fed.  Cas.,  pp.  240,  245. 

27  Best  Ev.,  §§  274,  275;  4  Elliott  Ev.,  §  3170. 

28  Elkin  v.  Janson,  13  M.  &  W.,  655,  662. 

29  Comm.  V.  Thurlow,  24  Pick.,  374. 


CHAP.  Ill]  BURDEN    OF   PROOF  177 

of  the  cases  in  the  books  seem  to  go  further. '^^ 
In  many  of  them,  however,  the  burden  of 
proof  is  more  or  less  affected  by  express 
statutory  provisions;  and  perhaps  the  most 
accurate  statement  of  the  rule,  as  far  as  es- 
tablished by  adjudicated  cases  at  common 
law,  is  to  be  found  in  Starkie,^^  who  says  that, 
upon  general  principles,  a  party  is  relieved 
''from  proof  of  the  negative  of  any  matter 
where  the  existence  of  the  affirmative  is  es- 
sential to  exempt  or  discharge  the  adversary 
from  some  duty  or  liability  proved  upon 
him.  "32     Under  this  rule  also  when  an  in- 

30  United  States  v.  Haywood,  supra. 

31  1  Starkie,  Ev.,  p.  *589. 

32  This  rule  being  founded  upon  considerations  of 
public  convenience  and  common  sense,  there  is  no 
good  reason  why  it  should  not  be  made  by  statute  to 
apply  to  cases  where  the  plaintiff  is  obliged,  as  in 
foreign  attachments,  to  aver  and  prove  that  his  ad- 
versary is  a  non-resident  of  the  state.  This  might  be 
done  by  declaring  that  in  such  cases  the  testimony  of 
the  plaintiff  that  he  had  made  diligent  inquiry  as  to 
the  residence  of  the  defendant  from  the  persons 
most  likely  to  know  about  it,  and  that  from  the  best 
and  most  reliable  information  so  obtained  he  verily 
believed  him  to  be  a  non-resident  of  the  state,  should 
be  competent  evidence  from  which  such  non-resi- 
dence might  be  inferred,  in  the  absence  of  any  proof 


178  PRODUCTION  OF   EVIDENCE  [PART   III 

jury  happens  to  a  passenger,  while  in  transit, 
by  a  common  carrier  or  when  property  is  lost 
or  damaged  during  its  transportation,  the 
burden  of  proof  is  imposed  upon  the  carrier 
to  show  that  such  injury,  loss  or  damage  was 
not  caused  by  any  negligence  on  its  part,  even 
in  cases  where  the  contract  of  shipment  ex- 
pressly limits  the  carrier's  liability  to  losses 
arising  from  its  negligence. ^^ 

§  81.  Burden  of  proof  in  particidar  classes 
of  cases.— Having  shown  the  general  nature 
of  the  burden  of  proof  and  upon  whom  it  is 
imposed,  we  will  next  consider  the  character 
of  evidence  by  which  it  must  be  sustained  in 
the  various  classes  of  cases  most  frequently 

to  the  contrary.  The  absence  of  such  provision  often- 
times renders  it  impossible  for  a  plaintiff  to  prove 
by  legal  evidence  the  non-residence  of  his  debtor, 
because  he  does  not  know  the  precise  place  where  he 
lives,  although  there  may  be  abundant  hearsay  evi- 
dence which  establishes  to  a  moral  certainty  the 
fact  that  he  lias  left  the  state.  Under  such  circum- 
stances, throwing  upon  the  defendant  the  burden  of 
proving  his  residence  would  certainly  tend  to  pro- 
mote the  ends  of  justice. 

83  Phila.  W.  &  B.  E.  R.  v.  Anderson,  72  Md.,  519 ; 
20  A.,  2;  8  L.  E.  A.,  678;  20  Am.  St.  R.,  483  and 
note.  Mitchell  v.  Carolina  E.  E.,  124  N.  C,  574;  32 
So.,  671 ;  44  L.  E.  A.,  515. 


CHAP,  l]  JURISDICTIONAL  FACTS  179 

arising  in  practice.  This  includes  (1)  Juris- 
dictional facts.  (2)  The  authority  of  plain- 
tiffs undertaking  to  sue,  and  the  liability  of 
defendants  who  are  sued  in  special  char- 
acters such  as  partners,  executors,  admin- 
istrators, trustees,  receivers,  assignees,  heirs, 
devisees,  legatees  or  distributors,  or  as  cor- 
porations or  companies.  (3)  The  contract 
and  the  breach  of  it  constituting  the  ground 
of  an  action  ex  contractu.  (4)  The  legal 
duty  and  the  breach  of  it  upon  which  an  ac- 
tion ex  delicto  is  founded.  (5)  The  quantity 
of  evidence  required  in  civil  and  criminal 
cases. 

§82.  Jurisdictional  facts.— The  burden  is 
always  imposed  upon  the  plaintitf  of  estab- 
lishing the  existence  of  the  facts  necessary  to 
give  the  tribunal  before  which  the  case  is 
tried,  jurisdiction  to  decide  it.  The  impor- 
tance of  establishing  these  facts  is  two-fold : 
first,  because  a  judgment  by  a  court  without 
jurisdiction  is  a  nullity,  and  it  must  therefore 
be  presumed  that  no  court  will  render  judg- 
ment until  satisfied  it  has  jurisdiction  to  do 
so.  And  secondly,  because  a  judgment  so 
rendered  without  jurisdiction  cannot  be  af- 
terwards enforced.  Jurisdiction  cannot  be 
conferred  upon  a  Court  by  consent  of  the 
parties  although  in  tlie  trial  of  cases  strictly 


180  PRODUCTION    OF    PROOF  [PART   III 

inter  partes  the  facts  which  would  confer  ju- 
risdiction may,  if  alleged  by  the  plaintiff,  or- 
dinarily be  established  by  proof  of  the  ad- 
missions express  or  implied  of  the  defendant. 
The  usual  test  to  determine  whether  a  judg- 
ment rendered  was  within  the  jurisdiction  of 
the  Court  is  an  inspection  of  the  record,  but 
there  is  this  distinction  betwen  the  records  of 
courts  of  general  jurisdiction — which  are 
those  having  to  take  all  ordinary  judicial  ac- 
tion in  any  case  brought  before  a  court  in  any 
common  law  mode  or  in  any  mode  prescribed 
by  statutes  in  lieu  and  as  the  equivalent  of 
the  common  law  mode — and  those  of  courts 
exercising  a  special  limited  power,  derived 
solely  from  and  exercisable  only  according  to 
statutes,  to  take  judicial  action  through  such 
modes  of  procedure  as  the  statute  authorizes 
and  prescribes.  Whenever  a  court  of  general 
jurisdiction  has  rendered  a  judgment,  it  will 
always  be  conclusively  presumed  that  all  the 
facts  necessary  to  give  it  jurisdiction  in  the 
premises  were  established  before  it,  unless 
such  presumption  is  directly  contradicted  by 
the  record  itself,  or  by  extraneous  proof  of 
fraud.^^    But  where  a  court  exercises  a  spe- 

34Voorhee3  v.    Bank  IT.   S.,   10   Pet.,  449,  469; 
Grignon's  heirs  v.  Aster,  2  How.,  319,  341 ;  Arroyo 


CHAP.  l]  JURISDICTIONAL  FACTS  181 

cial  or  limited  jurisdiction  under  a  special 
statute  prescribing  the  occasion  and  mode 
of  its  exercise,  no  such  presumption  arises, 
but  on  the  contrary,  the  proceedings  must  be 
fully  set  forth  in  the  record  and  they  will  be 
held  illegal  unless  it  appears  therefrom  af- 
firmatively that  all  the  facts  requisite  to  con- 
fer upon  the  court  the  jurisdiction  it  exer- 
cised were  duly  averred  and  proved.^^  It 
must  be  remembered  that  all  jurisdictional 
facts  necessary  to  entitle  a  plaintiff  to  the 
benefit  of  a  special  or  statutory  proceeding 
must  be  proved  by  competent  legal  evidence 
in  court  before  he  can  obtain  a  judgment  in 
such  proceeding.  Ex  parte  affidavits  required 
as  a  preliminary  to  the  issue  of  process  are 
not  legal  proof  that  the  facts  alleged  in  such 
affidavits  are  true  and  the  proof  of  the  truth 
of  such  facts  is  as  much  a  judicial  require- 

Ditch  Co.  V.  Superior  Court,  92  Cal.,  47 ;  28  P.,  54 ; 
Am.  St.  R.,  91. 

35  Thatcher  v.  Powell,  6  Wheat.,  119,  127;  Hall  v. 
Howd,  10  Conn.,  514;  27  Am.  D.,  696;  Tracey  v. 
Roberts,  88  Me.,  310,  316;  34  A.,  68;  51  Am.  St.  R., 
394,  396 ;  Warren  v.  Union  Bank  Rochester,  157  N. 
Y.,  259,  276;  51  N.  E.,  1036;  68  Am.  St.  R.,  777; 
43  L.  R.  A.,  256 ;  Williamette  Real  Est.  Co.  v.  Hen- 
drix,  28  Or.,  485,  494;  42  P.,  514;  52  Am.  St.  R., 
800. 


182  PRODUCTION  OF   EVIDENCE  [PART   III 

ment  as  is  the  fi]ing  of  the  affidavits,  so  that 
the  plaintiff  cannot  succeed  if  he  fails  to 
produce  such  proof  at  the  trial.  While  in 
suits  strictly  inter  partes  jurisdictional  facts 
may  generally  be  proved  by  mere  admissions 
made  in  the  pleadings  or  otherwise,  or  even 
by  the  failure  of  the  defendant  to  deny  such 
facts  when  alleged  by  the  plaintiff,  this  is 
not  the  case  in  proceedings  in  rem  where  the 
purpose  is  to  condemn  property  seized,  or  de- 
termine the  status  of  a  person  or  thing,  for  it 
would  be  most  unjust  that  the  rights  of  per- 
sons not  duly  summoned  to  appear  before 
the  court  should  be  injuriously  affected  by  the 
mere  statements  of  others  not  made  under 
oath  or  subjected  to  the  test  of  cross  examina- 
tion. Hence  in  cases  of  foreign  attachment 
the  burden  is  laid  upon  the  plaintiff  to  prove 
by  competent  evidence  at  the  trial  the  non  res- 
idence of  the  defendant  alleged  in  his  affi- 
davit as  the  ground  for  the  issue  of  the  writ 
of  attachment,^®  and  so  also  in  proceedings 
for  the  condemnation  of  property  seized  the 
prosecutor  must  furnish  prima  facie  evidence 

ssBarr  v.  Perry,  3  Gill,  313,  317;  Dumay  v.  San- 
chez, 71  Md.,  508,  511;  18  A.,  890;  Genesee  Co.  Sav. 
Bk.  V.  Michigan  Bay  Co.,  52  Mich.,  164,  166 ;  17  N. 
W.,  790. 


CHAP.   l]  PARTNERS  183 

of  the  liability  of  such  property  to  seizure  by 
the  terms  of  the  statute  under  which  he  is  pro" 
ceeding.^^ 

§  83.  Right  of  plaintiffs  to  sue  and  liability 
of  defendants  to  be  sued  in  special  characters, 
such  as  partners,  executors,  administrators, 
trustees,  receivers,  assignees,  heirs,  devisees, 
legatees  or  distributees,  or  as  associations,  or 
corporations,  or  as  husband  and  wife.— When- 
ever plaintiffs  undertake  to  sue  in  special 
characters,  or  to  sue  defendants  in  any  other 
capacity  than  as  individuals,  the  law  casts 
upon  them  the  burden  of  proving  their  right 
to  sue  in  such  character  and  also  of  establish- 
ing the  liability  of  the  defendants  in  the  ca- 
pacity in  which  they  are  charged,  for  with- 
out such  proof  the  plaintiffs  could  not  show 
their  right  to  a  judgment  against  the  defend- 
ants. 

(a)  Partners.— Plaintiffs  may  prove  their 
partnership  by  their  own  oral  testimony  or 
that  of  their  clerks  or  employees,  or  of  any 
other  person,  who  had  personal  knowledge  of 
the  existence  of  the  relationship  at  any  time 
when  its  existence  was  material,  and  this  is 
equally  applicable  whether  the  agreement  of 

37  Locke  V.  United  States,  7  Cr.,  399.  Lillien- 
thal's  Tobacco  Co.  v.  IT.  States,  97  U.  S.,  237,  264. 


184  PRODUCTION  OE  EVIDENCE  [PABT  III 

partnership  was  made  orally  or  in  writing.^^ 
They  may  prove  the  partnership  of  the  de- 
fendants by  the  same  kind  of  testimony  and 
also  by  the  admissions  of  the  parties  sought 
to  be  charged  as  partners,  or  by  proof  that 
they  held  themselves  out  to  the  public  as  part- 
ners by  their  acts  or  conduct.^^  The  produc- 
tion of  a  written  partnership  agreement  with 
the  proof  of  its  execution  while  always  ad- 
missible evidence  is  not  required  excepting  in 
controversies  between  the  parties  themselves 
or  their  representatives  to  determine  their 
respective  rights  and  liabilities  under  it.^" 
It  is  always  suijficient  to  establish  the  liability 
of  a  defendant  as  an  alleged  partner  to  show 
that  by  agreement  he  had  a  right  in  the  en- 
tire net  profits  of  the  business  which  entitled 
him  to  a  definite  share  of  it,  in  the  absence 
of  evidence  that  he  received  it  not  as  profits 
of  a  principal  or  of  money,  but  in  some  other 
character  not  involving  that  of  a  partner,  as 

88  Abb.  Tr.  Ev.,  Ch.  IX,  1.  Gilbert  v.  Whidden, 
20  Me.,  368. 

39  Abb.  Tr.  Ev.,  Ch.  IX,  9,  12,  Waugh  v.  Carver, 
2  H.  Blk.,  235.  Fletcher  v.  Pullen,  70  Md.,  207; 
16  A.,  887;  Burns  v.  Eowland,  40  Barb.,  368; 
Smith  V.  Smith,  27  N.  H.,  244;  1  Lindly  Part.,  47. 

40  2  Gr.  Ev.,  See.  479;  1  Elliott  Ev.,  §  604. 


CHAP.  l]  PARTNERS  185 

for  instance  that  of  an  employee.*^  For  pur- 
poses of  convenience  it  has  been  provided  by 
statute  in  many  of  the  States  that  when  a 
partnership  between  either  the  plaintiffs  or 
the  defendants  is  alleged  in  the  pleadings 
such  partnership  shall  be  deemed  to  be  admit- 
ted for  all  purposes  of  the  case  unless  ex- 
pressly denied  in  the  next  succeeding  plead- 
ing. Excepting  in  such  cases  and  even  in 
them  when  they  are  disputed,  it  is  incumbent 
upon  the  plaintiff  to  furnish  proof  as  above 
set  forth  of  all  partnerships  alleged  by  him 
in  his  pleadings.^2 

(b)  Executors  and  administrators.— The 
plaintiff  who  sues  as  executor  or  administra- 
tor of  another  must  produce  evidence  of  his 
authority  to  act  as  such  under  the  seal  of  a 
court  of  the  state  where  the  suit  is  brought, 
competent  to  grant  letters  testamentary  or 
of  administration.^^  It  must  be  remembered 
that  letters  testamentary  or  of  administra- 

*>■  Abb.  Tr.  Ev.,  Ch.  IX,  18,  Cox  v.  Hickman,  3 
Ho.  Lords  Cas.,  268,  306 ;  Eastman  v.  Clark,  53  N. 
H.,  276;  16  Am.  R.,  192;  Parker  v.  Canfield,  37 
Conn.,  250;  9  Am.  R.,  317. 

42  Cooper  &  Co.  v.  Coates  &  Co.,  21  Wall.,  105, 
110. 

«  2  Gr.  Ev.,  §  338,  Abb.  Tr.  Ev.,  Ch.  IV,  1,  3,  4, 
Noonan  v.  Bradley,  9  Wall.,  394,  399. 


186  PRODUCTION  OF  EVIDENCE  [PART   III 

tion  granted  to  a  person  in  one  state  do  not 
entitle  him  to  sue  as  executor  or  adminis- 
trator in  another  state.  In  order  to  do  this 
he  must  take  out  letters  either  principal  or 
ancillary  in  every  state  in  which  he  brings 
suit.  And  one  who  sues  another  as  execu- 
tor or  administrator  must  also  produce  like 
evidence  of  the  defendant's  liability  as 
such.^^  This  however  does  not  apply  to  suits 
brought  by  or  against  executors  or  adminis- 
trators in  their  individual  capacities  upon 
causes  of  action  that  accrued  after  the  death 
of  their  decedents,  even  though  they  be  there- 
in described  as  executors  or  administrators; 
for  in  such  cases  the  plaintiff's  right  of  ac- 
tion does  not  arise  out  of  the  transactions  of 
the  decedent  in  his  lifetime,  but  from  his  own 
dealings  with  the  latter 's  estate  after  his  de- 
cease, and  the  title  of  executor  or  administra- 
tor added  to  a  party's  name  need  not  be  re- 
garded as  a  declaration  of  the  character  in 
which  he  sues  or  is  sued,  but  as  a  mere  de- 
scription for  the  purpose  of  identification 
which  might  be  stricken  out  as  surplusage — 
as  in  cases  where  the  plaintiff's  cause  of  ac- 
tion arises  from  a  contract  made  with  him 

*4  2   Gr.    Ev.,   §  343 ;   Austin   v.    Munroe,   47   K. 
Y.,  360 ;  Davis  v.  Vansanda,  45  Conn.,  600. 


CHAP.    l]     EXECUTORS  AND  ADMINISTRATORS  187 

personally  after  having  taken  out  letters,  or 
where  the  judgment  if  rendered  against  the 
defendant  would  be  payable  de  bonis  propriis 
and  not  de  bonis  testatoris.  In  such  cases 
the  plaintitf's  right  to  sue  and  the  defend- 
ant's liability  to  suit,  not  being  wholly  de- 
pendent upon  the  letters  testamentary  or  of 
administration  held  by  them,  the  proof  of 
such  letters  may  generally  be  dispensed 
with.45 

(c)  Trustees.— When  plaintiffs  sue  trus- 
tees the  burden  is  upon  them  to  prove  the  ex- 
istence of  the  trust  under  which  they  act  and 
this  necessity  involves  the  fact  and  manner  of 
its  creation.  If  the  trust  was  created  by  pa- 
rol it  may  be  proved  by  parol,  and  when  it  had 
a  documentary  origin  the  document  or  docu- 
ments that  created  it  must  be  produced  and 
identified,  or  proved  by  secondary  evidence  in 
cases  where  the  latter  is  admissible.'*''  But  it 
has  been  held  that  where  a  trust  has  been 

*5  Schouler  Exr.,  §§  289  to  294;  Patchen  v.  Wil- 
son, 4  Hill,  57;  Biddle,  Admr.  v.  Wilkins,  1  Pet., 
686;  Barton,  Exr.  v.  Higgins,  41  Md.,  545;  Lucas 
V.  Byrne,  35  Md.,  485,  94 ;  Harper  v.  Butler,  2  Pet., 
237. 

46  Abb.  Tr.  Ev.,  Ch.  XI,  1 ;  Chew  v.  Brumagen,  13 
Wall.,  497,  503. 


188  PEODUCTION   OF   EVIDENCE  [PART   III 

created  by  a  document  which  does  not  fully 
set  forth  its  terms,  as  where  property  is  con- 
veyed by  deed  to  one  as  Trustee  without 
specifying  the  terms  of  his  trust,  that  the 
latter  may  be  proved  by  oral  evidence 
aliunde}'^  In  cases  where  the  trustee  was  ap- 
pointed by  a  decree  or  order  of  Court  a  duly 
authenticated  copy  of  such  decree  or  order 
should  be  produced  in  evidence.  The  same 
burden  of  proving  the  existence  and  terms  of 
the  trust,  as  well  as  its  acceptance  by  the  al- 
leged trustee,  is  also  imposed  upon  the  plain- 
tiff who  sues  another  as  trustee,  and  may  be 
discharged  in  like  manner.  But  whenever  the 
cause  of  action  is  a  contract  shown  to  have 
been  made  by  the  defendant  with  the  plaintiff 
as  trustee  in  the  character  in  which  he  sues, 
or  to  have  been  made  by  a  defendant  sued  as 
trustee  in  terms  admitting  his  own  liability  as 
such  trustee,  the  burden  will  be  deemed  sat- 
isfied by  proof  of  the  making  of  such  contract 
by  the  defendant,  as  he  would  thereby  be  es- 
topped from  denying  the  trusteeship  in  either 
case."*^    It  has  been  said  that  before  a  suit  can 

*7Eailroad  Co.  v.  Durant,  95  U.  S.,  576;  Kings- 
bury V.  Burnside,  58  111.,  319;  11  A.  R.,  67. 

48  St.  Dig.,  art.  102,  Pickard  v.  Sears,  6  A.  &  E., 
469,  474;  Morgan  v.  R.  R.  Co.,  96  U.  S.,  716. 


CHAP.   l]  TRUSTEES  189 

be  brought  against  a  trustee,  as  such,  he  must 
be  shown  to  have  had  notice  of  the  duty  he  is 
required  to  perform  and  an  opportunity  to 
perform  it,  but  this  rule  is  held  not  applicable 
in  a  case  where  the  trustee  is  himself  an  actor 
in  the  transaction  and  has  full  knowledge  of 
his  duties."*'' 

(d)  Receivers.— Plaintiffs  suing  as  receiv- 
ers must  in  all  cases  where  their  right  of  ac- 
tion became  vested  in  them  by  their  appoint- 
ment as  receivers,  produce  the  decree  or  or- 
der of  court  conferring  the  appointment  and 
also  proof  of  their  having  given  bond  as 
therein  provided,  where  a  bond  is  required  by 
the  terms  of  such  decree  or  order ;  and  when 
the  receivers'  right  to  sue  is  given  by  a  spe- 
cial order  passed  subsequently  to  his  appoint- 
ment, such  order  should  also  be  proved.^'' 
Such  proof  is  not  required  in  cases  where  the 
right  of  action  is  not  derived  through  their 
appointment,  as  where  they  sue  on  contracts 
made  with  them  as  receivers.^^    Neither  is  it 

49  Brent  v.  Maryland,  18  Wall.,  433,  434. 

50  Abb.  Tr.  Ev.,  Ch.  X,  2;  Potter  v.  Merchants 
Bk.,  28  N.  Y.,  641;  86  Am.  D.,  273,  281. 

51  Abb.  Tr.  Ev.,  Ch.  X,  1 ;  White  v.  Joy,  13  X.  Y., 
83;  Iglehart  v.  Bieran,  36  111.,  133;  High  on  Ee- 
ceivers,  §  243. 


190  PRODUCTION  OF   EVIDENCE  [PART   III 

required  in  cases  where  the  action  is  brought 
in  the  name  of  the  person  over  whose  estate 
he  has  been  appointed  for  the  use  of  the  re- 
ceiver, for  in  such  case  the  right  of  the  equi- 
table plaintiff  to  recover  can  only  be  disputed 
by  attacking  the  right  of  the  plaintiff's  at- 
torney to  bring  the  suit  in  tliat  form,  which 
will  always  be  presumed  until  cause  to  the 
contrary  be  sliown.^^  Nor  in  cases  where  the 
receiver  sues  as  assignee  of  the  party  whom 
he  represents,^^  the  proof  of  the  execution  of 
the  assignment  being  deemed  sufficient  even 
though  it  was  made  by  order  of  the  Court 
passed  in  the  proceeding  in  which  the  receiv- 
er was  appointed,  provided  such  assignment 
complies  with  the  requirements  of  the  statute 
enabling  an  assignee  to  sue  as  such  in  his 
own  name. 

In  actions  brought  against  defendants  as 
receivers  it  is  also  incumbent  upon  the  plain- 
tiffs to  prove  their  appointment  and  quali- 
fication, and  because  of  the  general  rule  that 
a  receiver  being  a  public  officer  cannot  unless 
expressly  authorized  by  statute  be  sued  with- 

^2  Lycoming  Fire  Ins.  Co.  v.  Langley,  62  Md.,  196, 
202. 

^3  High  on  Receivers,  §244;  Gray  don  v.  Church, 
7  Mich.,  36. 


CHAP.   l]  RECEIVERS  191 

out  leave  of  the  Court  by  which  he  was  ap- 
pointed,^'* it  is  always  prudent  to  prove  that 
such  leave  has  been  given  whenever  this  is 
the  fact.  It  has  been  held  by  some  of  the 
State  Courts  that  leave  to  sue  receivers  from 
the  Court  that  appointed  them  is  not  a  juris- 
dictional fact  and  therefore  need  not  be 
proved,  and  that  the  effect  of  suing  without 
leave,  is  not  to  nullifj^  the  action  but  at  most 
to  subject  the  party  bringing  the  suit  to  the 
penalties  of  a  contempt  of  the  Court  which 
appointed  the  receiver.^^  A  different  rule 
however,  prevails  in  the  Courts  of  the  United 
States,  which  have  held  that  no  Court  has 
jurisdiction  to  entertain  suits  brought  against 
receivers  without  leave  of  the  Court  by  which 
the  latter  were  appointed  unless  such  suits 
are  shown  to  be  within  the  terms  of  some 
statute  like  that  of  March  3rd,  1887,  sec.  3 
(24  U.  S.  Stats.  552),  authorizing  a  receiver 
appointed  by  Courts  of  the  United  States  to 
be  sued  without  leave  in  respect  to  any  act 

54  Porter  v.  Sabin,  149  U.  S.,  473,  479. 

55  Chataqua  Co.  Bank  v.  Eisley,  19  N.  Y.,  69 ;  75 
Am.  D.,  347;  Walling  v.  Miller,  108  N.  Y.,  173;  15 
:n:.  E.,  65 ;  2  Am.  St.  R.,  400 ;  Mulcahey  v.  Strauss, 
151  III,  70,  80;  37  N.  E.,  702;  Blumenthal  v.  Brain- 
ard,  38  Vi,  402 ;  91  Am.  D.,  349. 


192  PRODUCTIOX  OF   EVIDENCE  [PART   HI 

or  transaction  of  his  in  carrying  on  the  busi- 
ness connected  with  the  property  held  by  him 
as  such  receiver.^*'  But  whatever  jurisdic- 
tion other  Courts  may  have  to  entertain  suits 
against  receivers  without  leave,  the  plaintiffs 
in  such  suits  would  have  great  difficulty  in  en- 
forcing the  judgments  therein  rendered 
against  any  property  in  possession  of  or  con- 
trolled by  receivers  without  the  consent  and 
co-operation  of  the  Court  which  appointed 
them.^^ 

(e)  Assignees. — In  suits  brought  by  plain- 
tiffs in  their  own  names  as  assignees  the  bur- 
den is  upon  them  to  prove  by  competent  evi- 
dence the  execution,  prior  to  the  time  of 
bringing  their  suit,  of  the  assignment  under 
which  they  claim  and  whenever  such  assign- 
ment was  by  writing  to  produce  or  satisfac- 
torily account  for  the  nonproduction  of  the 
original  document  at  the  trial.^^  This  applies 
to  assignments  of  every  kind,  whether  by 

««  Barton  v.  Barbour,  104  U.  S.,  126;  Brown  v. 
Rausch,  1  Wash.,  497;  20  Pacif.,  785;  Malott  v. 
Shimer,  153  Ind.,  35;  54  N.  E.,  101;  74  Am.  St.  R., 
278,  and  note  p.  285. 

5^  Wiswall  V.  Sampson,  14  How.,  52,  66. 

58  Abb.  Tr.  Ev.,  Ch.  I,  2-12;  Garrigue  v.  Loescher, 
3  Bosw.,  578. 


CHAP.   l]  ASSIGNEES  193 

parol  or  deed,  and  whether  limited  to  the 
particular  property  involved  in  the  suit  or 
covering  the  whole  property  of  the  assignor 
as  in  the  case  of  general  assignments  for  the 
benefit  of  creditors  in  case  of  insolvency  or 
bankruptcy.^^  As  by  the  common  law  choses 
in  action  were  not  assignable  in  such 
manner  as  to  enable  the  assignees  to 
sue  upon  them  in  their  own  names,  but 
have  been  made  so  assignable  by  statute 
in  most  if  not  all  the  states  and  territories, 
it  is  incumbent  upon  the  assignee  suing  in 
his  own  name  upon  an  assigned  chose  in 
action  to  produce  an  assignment  fully  com- 
plying with  all  the  requirements  of  the 
statute  of  the  state  in  which  the  action  is 
brought.  The  validity  in  other  states  of  an 
assigTiment  of  property  made  pursuant  to  an 
insolvent  law  or  to  a  receivership  proceeding 
in  the  debtor's  domicil,  where  the  assignee  is 
in  effect  an  officer  of  the  Court  and  the  prop- 
erty is  administered  under  its  direction, 
would  depend  largely  upon  the  policy  of  the 
law  of  the  forum  in  which  such  assignment 
is  sought  to  be  enforced,  as  it  would  not  con- 
vey a  clear  legal  title  to  the  debtor's  property 

59  Abb.  Tr.  Ev.,  Ch.  I,  2 ;  Bowman  v.  Killiman, 
65  N.  Y.,  598. 

IS 


194  PRODUCTION    OF   EVIDENCE  [PART   III 

outside  of  the  state  of  his  domicil,  and  its 
efficacy  would  depend  wholly  on  the  comity 
of  the  Courts  in  such  State.  Any  rights 
claimed  under  such  assignments  would  as  a 
rule  be  subordinated  to  the  claims  of  cred- 
itors who  had  acquired  a  lien  by  attachment 
or  otherwise  upon  any  property  of  their  debt- 
or in  another  state  before  it  had  already  come 
into  the  actual  possession  and  custody  of  the 
assignee  or  receiver.^" 

(f)  Heirs,  devisees,  legatees  and  dis- 
tributees.—When  plaintiffs  sue  to  enforce 
rights  or  recover  property  claimed  by  them 
as  heirs,  devisees,  legatees  or  distributees  of 
the  estate  of  a  decedent,  the  burden  is  always 
upon  them  to  establish  by  affirmative  evi- 
dence the  fact  that  they  stand  in  that  partic- 
ular relationship  to  the  decedent  from  which 
the  right  of  action  asserted  by  them  has 
arisen.  Such  evidence  often  includes  proof 
of  the  death  of  the  decedent,  and  of  his  or  her 
marriage  and  of  the  birth,  marriage  death 
and  issue  of  any  descendants  or  other  rela- 
tions of  the  decedent  who  would  have  prior  or 

60  Brantley  Pers.  Prop.,  §  343 ;  Bearing  v.  Me- 
Kinnon  &  Co.,  165  N.  Y.,  78;  58  N.  E.,  773;  80 
Am.  St.  Eep.,  707 :  Catlin  v.  Wilcox  Silver  Plate  Co., 
123  Ind.,  477;  24  N.  E.,  250;  18  Am.  St.  R.,  338. 


CHAP.   l]  HEIRS,  DEVISEES,  ETC.  195 

equal  rights  with  the  plaintiff  to  the  property- 
sued  for  or  any  of  it.  Such  facts  as  death, 
birth  and  marriage  may  always  be  established 
by  the  oral  testimony  of  any  competent  wit- 
ness who  was  present  when  they  occurred,^^ 
and  also  by  entries  made  in  public  records  in 
performance  of  a  duty,*^^  and  by  the  declara- 
tions of  deceased  relatives  or  connections  by 
marriage  of  the  person  concerning  whom  they 
testify.^^  The  burden  of  proof  of  death  may 
be  sustained  prima  facie  by  presumptive  evi- 
dence, as  for  instance  by  proof  that  the  al- 
leged decedent  if  now  living  would  be  a  cen- 
tury old,^^  or  that  he  has  been  absent  from 
his  last  established  place  of  living  and  has  not 
been  heard  of  by  those  who  would  be  likely 
to  have  heard  of  him  if  alive  for  seven  years 
or  over.^^  When  proof  of  continuous  absence 
for  seven  years,  without  having  been  heard 
from,  has  raised  a  presumption  of  death  suffi- 

61  Abb.  Tr.  Ev.,  Ch.  V,  1,  14;  Secrist  v.  Green,  3 
Wah.,  750. 

62  See  §  30  ante. 

63  See  §  49  ante. 

64  Hammond's  lessee  v.  Inloes,  4  Md.,  138,  172,— 
75;  Young  v.  Sclmlenberg,  165  N.  Y.,  385,  389; 
59  N".  E.,  135 ;  80  Am.  St.  Rep.,  730,  3. 

65  Davie  v.  Brlggs,  97  U.  S.,  638,  633.  Sprigg  v. 
Moale,  38  Md.,  497;  93  Am.  D.,  698. 


196  PRODUCTION  OF   EVIDENCE  [PART  III 

cient  to  overcome  the  disputable  presump- 
tion of  continuing  life,  comparatively  slight 
evidence  is  sometimes  sufficient  to  enable  a 
court  to  find  that  the  death  presumed  must 
have  occurred  long  before  the  end  of  the 
seven  years  during  which  he  was  not  heard 
from.^® 

While  the  fact  of  marriage  may  be  pre- 
sumed from  the  general  reputation  of  per- 
sons living  together  as  man  and  wife,  it  must 
be  remembered  that  such  a  reputation  can  be 
founded  on  a  general  and  not  a  divided  or 
singulair  opinion,  for  when  opinion  in  such 
case  is  divided  it  amounts  to  no  evidence  at 
all.^'^  The  presumption  of  legal  marriages 
thus  raised  by  proof  of  general  reputation  has 
its  limits,  and  may  be  overcome  by  counter 
evidence  and  counter  presumptions.  Strict 
proof  is  required  when  such  a  presumption 
would  invalidate  a  subsequent  formal  mar- 
riage.^^ 

««Abb.  Tr.  Ev.,  Ch.  Y,  4.  Davie  v.  Briggs, 
supra. 

87  Banmm  v.  Barnum,  42  Md.,  351,  297 ;  Williams 
V.  Herrick,  21  R.  I.,  401 ;  43  A.,  1036.  See  2  Wig- 
more  on  Ev.,  §  1603  (2). 

«8  Jackson  v.  Jackson,  80  Md.,  176,  185 ;  30  A., 
752 ;  Jones  v.  Jones,  48  Md.,  391,  397 ;  30  Am.  R., 


CHAP.    l]  HEIRS,  DEVISEES,  ETC.  197 

The  usual  way  of  proving  births,  in  the  ab- 
sence of  witnesses  who  were  present,  is  by 
proof  of  declarations  of  deceased  relations 
or  connections,  including  entries  made  by 
them  in  family  bibles  or  testaments,  or  bj^  en- 
tries made  by  others  in  official  registers  in 
the  course  of  public  duty,^^  or  by  proof  that 
persons  dwelt  or  consorted  together  as  mem- 
bers of  one  family  in  the  apparent  relation 
of  parent  and  child  and  assisted  and  depended 
on  each  other  as  such."^*^  There  is  no  legal 
presumption  of  failure  of  issue,  and  there- 
fore when  the  assumption  that  any  person 
died  without  issue  is  essential  to  the  estab- 
lishment of  the  plaintiff's  case,  this  throws 
upon  him  the  burden  of  proving  such  failure 
by  affirmative  evidence.'^  ^ 

Wills. — When  the  plaintiff's  claim  is  de- 
pendent upon  a  will,  as  when  he  sues  as 

466;  Bowman  v.  Little,  101  Md.,  273;  61  A.,  233, 
657,  1084;  Badger  v.  Badger,  88  N.  Y.,  546;  42  Am. 
E.,  263. 

69  See  §§30  and  49  ante. 

70  Abb.  Tr.  Ev.,  Ch.  V,  29,  B.  &  0.  R  R.  Co.  v. 
Gettle,  3  W.  Va.,  376,  85 ;  Matheny  v.  Bohn,  160  111., 
263,  43  K  E.,  380. 

■71  Sprigg  V.  Moale,  28  Md.,  497,  505;  92  Am.  "R., 
698,  Abb.  Tr.  Ev.,  Ch.  V,  13a. 


198  PEODUCTION  OF  EVIDENCE  [PART  III 

devisee  or  legatee  or  as  the  heir  or  personal 
representative  of  a  devisee  or  legatee,  the 
burden  is  always  upon  him  to  prove  the  exe- 
cution and  validity  of  the  will  under  which  he 
claims.'^^  Where  the  will  has  been  duly  ad- 
mitted to  probate  a  copy  of  it  and  of  the  de- 
cree of  the  probate  court  duly  authenticated 
is  sufficient  to  establish  the  will  prima  facie 
and  shift  upon  the  adversary  the  burden  of 
disproving  the  validity  of  the  instrument.^  ^ 
But  where  the  will  has  not  been  probated,  as 
in  proceedings  to  establish  it  before  probate 
courts,  the  burden  is  upon  the  proponent  of 
the  will.  In  such  cases  prima  facie  proof  of 
the  execution  of  the  will  and  of  the  testamen- 
tary capacity  of  the  testator  may  be  ordina- 
rily established  by  the  evidence  of  the  attest- 
ing witnesses,  or  by  proof  of  their  signatures 
and  that  of  the  testator  when  the  witnesses 
are  dead  or  when  their  testimony  is  unobtain- 
able.^^ The  only  effect  of  such  prima  facie 
proof  is  to  shift  the  burden  upon  the  party 
contesting  the  will  so  long  as  there  is  no  con- 

72  Abb.  Tr.  Ev.,  Ch.  V,  58 ;  Washburn  Real  Prop- 
erty, 371. 

73  Abb.  Tr.  Ev.,  Ch.  V,  59,  Wliar.  Ev.,  §§  66,  811. 
7  4  Abb.  Tr.  Ev.,  Ch.  V,  61;  Schouler  v.  Willis,  § 

348 ;  Higgins  v.  Carlton,  28  Md.,  115,  92  Am.  D.,  666. 


CHAP.  l]  WILLS  199 

flicting  evidence,  for  the  introduction  of  such 
evidence  would  impose  upon  the  party  pro- 
pounding the  will,  or  those  claiming  under  it 
the  burden  of  establishing  its  validity  by  a 
preponderance  of  proof.'^^  The  probate  of  a 
will  by  a  court  of  competent  jurisdiction  is 
held  at  comm.on  law  and  under  the  statutes 
in  force  in  most  if  not  all  the  states,  to  be 
conclusive  proof  in  all  collateral  proceedings 
of  its  validity  as  to  personal  estate,  and 
prima  facie  proof  of  its  validity  as  to  realty.'^^ 
Some  of  the  Statutes  make  it  also  conclu- 
sive as  to  realty. 

(g)  Associations.— Associations  have  been 
defined  as  bodies  of  persons  acting  together 
without  a  charter  but  upon  the  methods  and 
forms  used  by  incorporated  bodies  for  the 
prosecution  of  some  common  enterprise.'^'^ 
In  the  absence  of  statutory  authority  such  as- 
sociations ordinarily  cannot  sue  in  their  asso- 
ciate name  or  in  the  names  of  their  officers, 
but  all  the  members  must  unite  as  individuals 
having  a  joint  interest  in  the  affairs  of  the 
Association.'^^     So   also   suits   against   such 

75  Abb.  Tr.  Ev.,  Ch.  V,  61,  62. 
"^6  Abb.  Tr.  Ev.,  Ch.  V,  60,  case  of  Broderick's  Will, 
21  Wall.,  503,  2  Whar.  Ev.,  §  811. 

77  4  Cyc,  301. 

78  Detroit  Schutzenbund  v.  Detroit  Agitation, 


200  PRODUCTION  OF   EVIDENCE  [PART   III 

associations  must  in  the  absence  of  statutory 
authority  be  brought  against  the  individual 
members  composing  iV^  In  such  suits  the 
burden  is  upon  the  plaintiff  to  prove  by  com- 
petent evidence  who  the  persons  composing 
such  association  are  at  the  time  of  bringing 
the  suit.^*^  The  members  are  generaly  re- 
garded as  partners  in  their  relations  and 
liabilities  to  third  parties,^^  but  not  as  part- 
ners inter  sese.^^ 

Although  the  courts  of  equity  and  in  some 
instances  the  courts  of  law  have  modified  the 
common  law  rule  by  permitting  one  or  more 
members  to  bring  suits  on  behalf  of  all  the 
other  members  when  the  latter  were  too  nu- 
merous to  be  joined  as  plaintiffs  without  great 
inconvenience,  it  has  been  held  by  some  of  the 

Verein,  44  Mich.,  313;  38  Am.  R.,  270;  Metal 
Stamping  Co.  v.  Crandall,  17  Fed.  Cas.,  171  No. 
9,493c;  WilHams  v.  Michigan  Bk.,  7  Wend.,  539, 
542 ;  Curd  v.  Wallace,  7  Dana,  190 ;  32  Am.  D.,  85. 

79  Davison  v.  Holden,  55  Conn.,  103;  10  A.,  515; 
3  Am.  St.  E.,  40;  Am.  Steel,  etc.,  Co.  v.  Wire  Draw- 
ers Union,  90  Fed.,  598. 

80  Kuehl  V.  Meyer,  50  Mo.  App.,  648. 

81  Babb  V.  Eeed,  5  Eawie,  151 ;  38  Am.  D.,  650. 

82  Burke  v.  Eoper,  79  Ala.,  138;  Ash  v.  Guie,  97 
Pa.  St.,  493;  39  Am.  Eep.,  818. 


CHAP.   l]  ASSOCIATIONS  201 

courts  that  in  such  cases  all  the  other  mem- 
bers should  be  made  defendants.^^ 

It  is  always  incumbent  upon  the  plaintiffs 
in  suits  for  and  against  associations  to  prove 
the  joint  interest  of  all  the  plaintiffs  and  the 
joint  liability  of  all  the  defendants  as  to  the 
subject  matter  of  the  suit.^^ 

(h)  Corportations.— In  all  suits  by  or 
against  corporations  the  burden  is  upon  the 
plaintiff  to  prove  the  incorporation  of  every 
party  to  the  cause,  suing  or  sued  as  a  body 
corporate.^^  This  burden  may  be  ordinarily 
sustained  by  producing  an  authenticated  copy 
of  the  Charter  or  the  instrument  or  instru- 
ments which,  with  proper  legislative  sanction, 
purport  to  confer  corporate  powers  or  recog- 
nize them  as  actually  existing,  with  evidence 
of  the  acceptance  of  such  charters  by  the  per- 
sons to  whom  it  was  granted,  and  their  or- 
ganization thereunder  and  user  of  the  corpo- 
rate franchises.®^    Acceptance  and  user  may 

83  Mears  v.  Moulton,  30  Md.,  142 ;  Snow  v.  Wheeler, 
113  Mass.,  179 ;  Liederkranz  Singing  Soc.  v.  Ger- 
mania  Turner  Verein,  163  Pa.  St.,  265 ;  29  A.,  919 ; 
43  Am.  St.  R.,  798,  and  note  to  Phipps  v.  Jones,  59 
Am.  D.,  711. 

«*  Whitney  v.  Mayo,  15  111.,  251. 

w  Abb.  Tr.  Ev.,  Ch.  Ill,  1. 

®®  lb.,  Ch.  Ill,  2,  Cook  on  Corporations,  sec.  753. 


202  PRODUCTION  OF   EVIDENCE  [PART  III 

be  shown  by  any  evidence  that  the  body  in  its 
organic  capacity,  as  distinguished  from  the 
individual  conduct  of  the  corporators,  acted 
under  the  charter,  except  in  cases  where  the 
charter  prescribes  a  different  method  of 
proof.^'^ 

If  the  legislative  sanction  relied  on  is  a 
general  law  the  existence  of  the  corporation 
under  it  may  be  proved,  unless  the  law  other- 
wise provides,  by  producing  the  certificate  of 
organization  which  the  law  requires  to  be 
filed,  with  proof  of  its  filing,  or  by  a  certified 
copy  of  the  record  of  the  certificate  where 
such  copy  is  made  evidence  by  statute.®* 

For  convenience,  statutes  have  been  enacted 
in  some  of  the  States  providing  that  when- 
ever the  incorporation  of  any  of  the  parties 
to  a  suit  is  alleged  in  the  declaration  or  com- 
plaint, such  incorporation  shall  be  deemed  to 
be  admitted  for  all  the  purposes  of  that  suit 
by  the  defendant,  unless  specifically  denied 
by  him  in  the  manner  and  within  the  time  pre- 
scribed by  the  Statute.  In  these  cases,  and  in 
those  in  which  the  question  of  corporation 
vel  non  is  required  to  be  raised  by  plea  in 

87  lb.,  Ch.  Ill,  11,  13. 

88  lb.,  Ch.  Ill,  13;  Benbow  v.  Cook,  115  N.  C, 
324,  339;  30  S.  E.,  453;  44  Am.  St.  R.,  454. 


CHAP.  l]  CORPORATIONS  203 

abatement  and  such  plea  is  not  filed,  the  plain- 
tiff is  relieved  from  the  burden  of  proving 
incorporation  of  either  party.  In  cases  where 
the  incorporation  of  the  defendant  is  con- 
tested the  plaintiff  need  only  prove  it  to  have 
a  de  facto  corporate  existence,  that  is  to  have 
been  organized  professedly  under  some  law 
or  charter  under  which  a  corporation  with 
the  powers  assumed  might  lawfully  be  cre- 
ated and  to  have  exercised  or  held  itself  out 
to  the  public  as  exercising  the  powers  per- 
taining to  a  corporation  formed  under  such 
charter  or  law,  even  where  the  organization 
was  so  defective  or  irregular  as  not  to  be 
valid  as  against  the  State.  In  such  cases  the 
party  sued  is  estopped  from  denying  its  cor- 
porate existence.^^  The  same  rule  of  estoppel 
is  applicable  to  defendants  as  to  denying,  ex- 
cept as  hereafter  stated,  the  due  incorpora- 
tion of  the  plaintiff  in  suits  to  enforce  con- 
tracts made  with  it  as  a  corporation  for  a 
good  or  valuable  consideration  whether  for 
subscription  for  stock  or  any  other  indebted- 

8»  Abb.  Tr.  Ev.,  Ch.  Ill,  15,  19,  22;  Finnegan  v. 
Noerenberg,  52  Minn.,  239;  53  X.  W.,  1150;  38  Am. 
St.  R.,  552;  18  L.  E.  A.,  778;  Marshall  v.  Keech,  227 
111.,  35;  81  K  E.,  29;  118  Am.  St.  R.,  246,  7. 


204  PRODUCTIOX  OF  EVIDENCE  [PART  III 

ness.^°  Although  as  has  been  said  a  corpora- 
tion cannot  be  created  by  estoppel,^^  the  con- 
duct of  the  defendants  in  such  cases  is 
deemed  to  be  an  admission  by  them,  which 
they  are  not  allowed  to  dispute,  of  the  due  in- 
corporation of  the  alleged  corporation,  and 
from  this  admission  the  jury  are  at  liberty  to 
infer  such  incorporation,  unless  it  appears  af- 
firmatively from  evidence  in  the  case  that  is 
must  have  been  without  legal  sanction,  as 
where  there  was  no  existing  law  or  charter 
under  which  such  a  corporation  could  have 
been  created  at  or  prior  to  the  time  of  the  ex- 
ecution of  the  alleged  corporation  contract 
sued  on.  From  introducing  evidence  of  such 
want  of  legal  sanction  the  defendants  are  not 
estopped.^2 

»o  Abb.  Tr.  Ev.,  Ch.  Ill,  19,  20,  21 ;  Cook  Corp., 
sec.  185,  186;  Tay.  Priv.  Corp.,  sec.  146;  Owensboro 
Wagon  Co.  v.  Bliss,  132  Ala.,  253;  31  So.,  81;  90 
Am.  St.  E.,  907;  Jones  v.  Aspen  Hardware  Co.,  21 
Colo.,  263;  40  P.,  457;  52  Am.  St.  E.,  220;  29  L.  E. 
A.,  143. 

91  Boyce  v.  Trustees  M.  E.  Ch.,  46  Md.,  359,  73 ; 
Heaston  v.  Cincinnati  &  Fort  Warae  E.  E.  Co.,  16 
Ind.,  275,  79  Am.  Dec,  430 ;  Abb.  Tr.  Ev.,  Ch.  Ill,  5. 

92  Clark  V.  American  Cannel  Coal  Co.,  165  Ind., 
213,  16;  73  >s^.  E.,  1082;  112  Am.  St.  E.,  217;  Abb. 
Tr.  Ev.,  Ch.  Ill,  5,  18. 


CHAP.  l]  HUSBAND  OR  WIFE  205 

(i)  Husband  or  wife.— The  cases  in  which 
parties  sue  or  are  sued  in  the  characters  of 
husband  or  wife,  may  be  divided  into  three 
classes.  (1)  Where  husband  and  wife  sue 
jointly  to  enforce  on  behalf  of  the  wife  some 
right  or  claim  which  has  accrued  to  her  or  to 
them  through  her,  or  where  they  are  sued 
jointly  to  enforce  some  liability  to  the  plain- 
tiffs which  accrued  through  her.  (2)  Where 
the  husband  sues  alone  on  behalf  of  his  wife 
on  account  of  a  wrong  done  to  her  or  to  him- 
self through  her,^3  qj-  ^iien  he  is  sued  alone 
upon  some  liability  incurred  by  her  as  his 
wife,  for  which  the  law  makes  him  responsible 
as  her  husband,  as  for  example,  for  debts  con- 
tracted by  her  for  necessaries  upon  his 
credit,^^  or  for  torts  committed  by  her  in  his 
presence.^^  (3).  Divorce  proceediugs  and 
other  actions  between  husband  and  wife  for 
the  enforcement  of  marital  rights  and  liabil- 
ities. In  all  three  classes  the  burden  always 
rests  upon  the  plaintiffs  to  prove  the  facts  of 
the  marriage  from  which  their  right  of  action 
has  arisen.    In  cases  of  the  first  and  second 

^5  As  in  suits  for  crim.  con.,  Stewart  H.  &  "W.,  §  79. 
94  Stewart  H.  &  W.,  §  95. 

»5  Stewart  H.  &  W.,  §  66 ;  Nolan  v.  Traber,  49  Md., 
460,  468;  33  Am.  St.  R.,  277. 


206  PRODUCTION  OF  EVIDENCE  [PART  III 

classes,  except  where  a  celebration  at  a  cer- 
tain time  and  place  is  alleged  in  the  plead- 
ings,^^ and  excepting  in  actions  for  criminal 
conversation,^^  this  may  generally  be  done  by 
evidence  that  the  parties  alleged  to  be  mar- 
ried lived  together  as  husband  and  wife  and 
bore  the  general  reputation  of  being  such  in 
the  community  in  which  they  lived,  or  by  the 
admission  of  the  defendants,  made  either  in 
their  pleadings  or  orally  at  or  before  the  time 
of  trial,  that  they  were  married  as  alleged. 
But  in  cases  of  the  third  class  and  in  others 
where  the  existence  of  the  marriage  alleged 
would  show  a  defendant  to  be  guilty  of  a 
crime  something  more  is  required  to  prove  it. 
Suits  for  divorce  are  in  the  nature  of  proceed- 
ings in  rem  as  they  are  intended  to  finally  de- 
termine as  against  all  the  world  the  matri- 
monial status  of  the  parties  thereto  and  there- 
fore in  them  the  fact  of  the  marriage  upon 
which  that  relation  depends  must  be  shown 
by  direct  evidence  and  neither  mere  general 
reputation,®^  nor  the  admissions,^®  as  distin- 

®6  Stewart  M.  &  D.,  §  135 ;  Eedgrave  v.  Eedgrave, 
38  Md.,  144,  147. 

97  Id. ;  Catherwood  v.  Caslon,  13  Mees  &  W.,  261, 
264. 

»8  1  Bish.,  M.  D.  &  S.,  §§  932-943,  1057. 

99  2  Bish.,  M.  D.  &  S.,  §  756. 


OHAP.  l]  MAREIAGE  207 

guislied  from  the  testimony  of  the  parties 
concerned  are  ordinarily  deemed  sufficient 
for  the  purpose.  Although  in  some  early 
American  cases  of  suit  for  divorce  from  bed 
and  board,  it  has  been  held  that  further  proof 
of  a  marriage  admitted  by  the  defendant  was 
not  required,^ ^"^  yet  the  mass  of  authorities, 
both  English  and  American,  require  proof  of 
the  marriage  in  all  cases,  nor  do  they  suffer 
this  fact  more  than  any  other  to  be  establish- 
ed solely  by  the  admission  of  the  defend- 
ant. ^^^  As  the  decisions  are  somewhat  con- 
flicting in  drawing  the  exact  line  between  those 
cases  in  which  the  burden  of  proving  a  mar- 
riage can  be  discharged  by  proof  of  cohabi- 
tated  with  general  reputation  of  being  mar- 
ried or  by  admissions  of  the  marriage  by  the 
defendant,  and  those  in  which  affirmative 
proof  of  the  celebration  is  required,  it  is  only 
prudent  to  produce  the  latter  in  all  cases 
where  it  is  possible  to  obtain  it. 

§84.  Burden  of  proof  in  actions  ex  con- 
tractu.—In  all  actions  err  contractu  the  burden 
is  upon  the  plaintiff  to  prove  the  contract 
with  the  defendants,  a  breach  of  it  by  the 

^00  Haraian   v.   Harman,    16    111.,   85 ;    Helms  v. 
FraJiciscus,  2  Bl.,  544 :  20  Am.  Dec,  402. 
101  2  Bish.,  M.  D.  &  Sep.,  §  736. 


208  PRODUCTION  OF  EVIDENCE  [PART   III 

latter  and  the  amount  of  damage  suffered  by 
the  plaintiffs  thereby.  If  the  contract  is  in 
writing  the  original  document  or  documents 
must  be  produced  ^  or  their  contents  shown  by 
secondary  evidence  in  cases  where  such  evi- 
dence is  admissible,^  and  the  execution  and 
delivery  of  the  documents  proved.''  If  the 
contract  was  verbal  or  arose  by  implication  it 
may  be  proved  by  oral  evidence,  but  in  all 
cases  it  must  be  established  prima  facie  as  set 
forth  in  the  pleadings,  either  by  direct  evi- 
dence or  by  evidence  of  facts  from  which  the 
law  would  imply  it,  or  by  proof  of  the  admis- 
sions of  the  defendants,  as  otherwise  the 
court  must  on  motion  direct  a  verdict  in  favor 
of  the  latter.^  If  the  contract  sued  on  is 
claimed  to  have  been  made  by  an  agent  the 
burden  is  upon  the  plaintiff  to  prove  by  affir- 
mative evidence  the  authority  of  the  agent  to 
make  such  a  contract  on  behalf  of  his  prin- 
cipal, or  the  ratification  of  it  by  the  latter 
after  it  was  made.^    Wlien  the  contract  upon 

^  §  66,  ante. 

2  §  71,  mte. 

8§  58,  ante. 

^  §  78,  ante;  Gambrill  v.  Schooley,  95  Md.,  260, 
271;  52  A.,  500;  63  L.  E.  A.,  437. 

6  Carroll  v.  Manganese  Steel  Safe  Co.,  Ill  Md., 
252,  73  A.,  665. 


CHAP.  l]  ACTIONS   EX  CONTRACTU  209 

which  the  action  arises  is  within  the  Statute 
of  Frauds  it  is  incumbent  upon  the  plaintiff 
to  show  that  the  requirements  of  the  Statute 
have  been  complied  with.^ 

There  is  also  imposed  upon  the  plaintiff  the 
further  burden  of  showing  such  a  breach  of 
the  contract  by  the  defendant  as  will  furnish 
the  plaintiff  with  a  present  cause  of  action, 
subsisting  at  the  time  of  the  bringing  of  his 
suit,  as  for  instance  in  the  case  of  an  action 
brought  upon  a  promise  to  indemnify  the 
plaintiff,  where  the  latter  can  only  recover 
for  the  amount  of  loss  or  damage  which  he 
can  prove  had  been  actually  suffered  by  him 
up  to  the  time  of  bringing  of  his  suitJ 

According  to  the  rule  laid  down  in  Hadley 
vs  Baxendale,  the  leading  case  on  the  subject 
of  damages  arising  from  a  breach  of  contract, 
which  has  been  generally  adopted  in  this 
country,  "Where  two  parties  have  made  a 
contract  which  one  of  them  has  broken,  the 
damages  which  the  other  party  ought  to  re- 
ceive in  respect  of  such  breach  of  contract 

«  Heaton  v.  Eldridge,  56  Ohio  St.,  87,  101 ;  46  N. 
E.,  295;  60  Am.  St.  E.,  737,  748;  36  L.  E.  A.,  817. 

"^  Henderson,  etc.,  Co.  v.  J.  Shillito  &  Co.,  64  Ohio 
St.,  236;  60  K  E.,  295;  83  Am.  St.  E.,  750;  Wicker 
V.  Hoppock,  6  Wall.,  94,  99. 

14 


210  PRODUCTION  OF   EVIDENCE  [PART   III 

should  he  such  as  may  fairly  and  reasonably 
be  considered  either  arising  naturally,  i.  e. 
according  to  the  usual  course  of  things,  from 
such  breach  of  the  contract  itself,  or  such  as 
may  reasonably  be  supposed  to  have  been  in 
the  contemplation  of  both  parties  at  the  time 
they  made  the  contract,  as  the  probable  re- 
sult of  the  breach  of  it."^  To  enable  the  jury- 
to  fairly  estimate  the  amount  of  such  dam- 
ages they  must  ordinarily  have  before  them 
some  evidence  of  the  circumstances  under 
which  the  contract  was  made  and  of  the  re- 
sults which  followed  the  breach  of  it.  The 
burden  of  producing  such  evidence  rests  upon 
the  plaintiff  and  therefore  the  nonproduction 
of  a  sufficiency  of  it  to  enable  the  jury  to 
determine  with  any  certainty  the  amount  of 
the  damages  suffered  by  him,  will  prevent 
him  from  recovering  more  than  nominal  dam- 
ages,^ except  in  cases  where  the  terms  of  the 
contract  itself  show  the  plaintiff  entitled  to 
recover  substantial  damages  for  its  breach, 
and  also  enable  the  jury  to  fix  the  amount  of 
such  damages  as  in  cases  of  contracts  to  pay 

8  9  Exch.,  341,  359. 

»  Marzetti  v.  Williams,  B.  &  Aid.,  415;  Mecklem 
V.  Blake,  23  Wis.,  495;  99  Am.  Dec,  68;  Johnson  v. 
Stear,  15  C.  B.  (N.  S.),  330. 


CHAP.  l]  ACTIONS  EX  DELICTO  211 

sums  of  money  ascertained  or  ascertainable 
from  the  evidence  before  the  court.^^ 
§  85.    Burden  of  proof  in  actions  ex  delicto. 

In  actions  for  torts  the  burden  is  upon  the 
plaintiff  to  show  affirmatively  that  the  de- 
fendant has  either  wilfully  or  carelessly  vio- 
lated some  right  of  property,  person  or  char- 
acter of  the  plaintiff  which  the  law  recognizes 
and  protects,  or  has  wilfully  neglected,  or 
negligently  performed  or  attempted  to  per- 
form some  duty,  imposed  by  the  law  upon 
him  towards  the  plaintiff  independently  of 
any  contract  between  them,  so  as  to  cause  loss 
or  damage  to  the  plaintiff,  and  also  to  show 
the  extent  of  the  alleged  damages.^  ^  Before 
the  plaintiff  can  recover  in  an  action  ex  delic- 
to there  must  be  evidence  before  the  jury  of 
facts  from  which  they  can  find  the  existence 
of  some  right  in  the  plaintiff  which  has  been 
violated,  or  of  some  duty  to  him  which  has 
been  neglected  by  the  defendant.  Proof  of 
the  violation  of  any  property  right  of  the 
plaintiff  by  the  defendant  entitles  the  former 
to  a  verdict  for  at  least  nominal  damages 

10  Per  Willes,  J.,  in  Fletcher  v.  Tayleure,  17  C. 
B.,  29,  and  per  Bovill,  C.  J.,  in  British  Columbia 
Saw  Mill  Co.  V.  Nettleship,  L.  R.,  3 ;  C.  P.,  506. 

iiCooley  on  Torts,  60;  Pollock  on  Torts,  18. 


212  PRODUCTION  OF  EVIDENCE  [PART  III 

whether  he  has  suffered  any  actual  damages 
or  not.^2  But  in  order  to  recover  substantial 
damages  the  plaintiff  must  show  that  he  has 
suffered  actual  loss  to  that  extent,  or  else 
make  it  appear  to  the  jury  from  the  evidence 
that  the  conduct  of  the  defendant  has  been 
characterized  by  such  reckless  disregard  to 
the  rights  of  others  or  such  a  display  of  mal- 
ice as  to  render  him  liable  for  exemplary  or 
punitive  damages  in  addition  to  ordinary  com- 
pensatory damages.^^  While  it  is  the  duty  of 
the  Court  to  prescribe  in  every  case  to  the 
jury,  the  rule  by  which  the  damages  must  be 
measured,  it  is  incumbent  upon  the  plaintiff 
to  produce  before  them  evidence  of  such  facts 
as  will  enable  them  to  apply  this  rule  and  if 
he  fails  to  produce  this  evidence  he  will  be 
unable  to  recover  more  than  nominal  dam- 
ages.^^ 

§86.  Special  rules  as  to  burden  in  par- 
tdcular  forms  of  action  ex  delicto.— In  actions 

12  Holt,  C.  J.,  in  Ashby  v.  White,  2  Lord  Ray- 
mond, 938;  Smith  Lea.  Cas.,  251,  278  (7  ed.)  ; 
Webb  V.  Portland  Mfg.  Co.,  3  Summer,  189,  192; 
29  Fed.  Cas.,  No.  17,322. 

13  Mayne  on  Damages  (36)  ;  Pollock  on  Torts, 
161-165. 

1*  Ibid. 


CHAP.  l]  ACTIONS  EX  DELICTO  213 

on  the  case  for  negligeucc  the  burden  is  al- 
ways upon  the  plaintiff  to  prove  that  the  in- 
jury or  damage  sued  for  was  occasioned  by 
the  negligence  of  the  defendant  but  there  is 
some  difference  in  the  rulings  of  the  Courts 
as  to  whether  he  is  also  bound  to  prove  affirm- 
atively that  he  was  himself  free  from  contrib- 
utory negligence  before  he  can  recover.  The 
Courts  of  the  United  States  hold  that  he  is 
not  so  bound,  and  if  he  can  prove  his  case 
without  showing  contributory  negligence, 
that  this  is  a  defense  to  be  proved  by  the  de- 
fendant.^ °  The  Courts  of  Massachusetts  on 
the  other  hand  maintain  the  rule  that  the  bur- 
den is  always  upon  the  plaintiff  to  establish 
either  that  he  was  himself  in  the  exercise  of 
due  care  or  that  the  injury  was  in  no  degree 
attributed  to  any  want  of  proper  care  on  his 
part,  and  evidence  which  only  partially  dis- 
closes the  facts  leaving  a  ease  consistent  alike 
with  negligence  or  with  care  on  the  plaintiff 's 
part  is  not  enough  to  sustain  a  verdict.^  ^  A 
third  rule  on  this  subject  adopted  by  the 

15  Railroad  Co.  v.  Gladmon,  15  Wall.,  401;  In- 
dianapolis, etc.,  E.  E.  V.  Hoist,  93  U.  S.,  291 ;  Abb. 
Tr.  Ev.,  Ch.  XXXI,  34. 

^«  Murphy  v.  Deane,  101  Mass.,  455 ;  3  Am.  E., 
390;  Crafts  v.  Boston,  109  Mass.,  137;  11  K.  E.,  938. 


214  PEODUCTION  OF  EVIDENCE  [PAET  III 

Courts  of  New  York  is  to  the  effect  that  it  de- 
pends on  the  circumstances  of  each  case 
whether  the  plaintiff  must  introduce  affirma- 
tive evidence  that  he. was  not  chargeable  with 
negligence  before  he  will  be  able  to  recover.^ '^ 
Although  the  rule  of  the  United  States  Courts 
seems  to  be  the  soundest  on  principle  and  the 
most  convenient  in  practice,  yet  in  view  of 
the  uncertainty  as  to  whether  or  not  in  any 
special  case  pending  in  one  of  the  State 
Courts  the  latter  would  follow  one  of  the 
other  rules,  the  prudent  practitioner  when 
representing  a  plaintiff  in  any  of  them  will 
always  when  practicable  put  in  some  affirma- 
tive evidence  to  show  that  his  client  was  en- 
tirely free  from  contributory  negligence. 

In  actions  against  public  officers  for  a 
breach  of  official  duty  the  burden  is  always 
on  the  plaintiff  to  prove  every  fact  necessary 
to  constitute  such  breach,  by  evidence  suffi- 
ciently strong  to  overcome  the  presumption  of 
innocence  which  the  law  recognizes  as  strong 
in  their  favor.^* 

In  actions  for  deceit  cmd  fraud  the  burden 

IT  Abbotts  Tr.  Ev.,  Ch.  XXXI,  36;  Johnson  v. 
Hudson  R.  R.  Co.,  20  N.  Y.  65 ;  75  Am.  Dec.  375. 

18  Abb.  Tr.  Ev.,  Ch-  VIII,  14;  Wilkes  v.  Dinsman, 
7  How.,  89,  130. 


CHAP.  l]  DECEIT  AND  FEAUD  215 

is  on  the  plaintiff  to  show  that  the  defendant 
made  representations  to  him  which  were  false 
in  fact,^^  which  the  defendant  had  not  good 
reason  at  the  time  of  making  them  to  believe 
to  be  true,^''  that  the  plaintiff  relied  and  acted 
upon  such  representations,-'  and  that  he  suf- 
fered actual  loss  and  damage  thereby .^^ 

In  actions  for  the  ivrongful  conversion  of 
personal  property,  the  burden  is  upon  the 
plaintiff  to  show  the  existence,  identity  and 
value  of  the  thing  alleged  to  have  been  con- 
verted, the  fact  of  the  conversion  and  that  the 
plaintiff  had  either  a  general  or  a  special 
property  therein  with  the  right  to  immedate 
posession  thereof  at  the  time  of  said  conver- 
sion.23    The  fact  of  conversion  may  be  estab- 

19  Abb.  Tr.  Ev.,  Ch.  XXXIV,  4;  Bigelow  on 
Fraud,  493 ;  Gray  v.  Lessington,  2  Bosw.,  357 ;  Eeeve 
V.  Dennett,  145  Mass.,  23. 

20  Cabot  V.  Christie,  42  Vt.,  121 ;  1  Am.  E.,  313 ; 
Graves  v.  Lebanon  Nat.  Bank,  10  Bush.,  Ky.,  23 ;  19 
Am.  E.,  50 ;  Bigelow  on  Fraud,  509. 

21  Ming  V.  Woolfolk,  116  U.  S.,  599,  602;  Jenkins 
V.  Long,  19  Ind.,  28 ;  81  Am.  D.,  374. 

22  Ming  V.  Woolfolk,  116  U.  S.,  599,  602;  Munroe 
V.  Gairdner,  3  Brev.,  31;  5  Am.  D.,  531. 

23  Union  S.  Y.  &  T.  Co.  v.  Mallory,  etc.,  Co.,  157 
111.,  554,  560;  41  N.  E.,  888;  48  Am.  St.  E.,  341, 
343 ;  Wilson  v.  Wilson,  37  Md.,  1, 17 ;  11  Am.  E.»  518 ; 


216  PEODUCTION    OF    EVIDENOB  [PABT   III 

lished  by  proof  of  the  failure  of  the  defend- 
ant to  surrender  the  property  to  the  plain- 
tiff after  a  formal  demand  has  been  made 
upon  him  therefor.-^ 

In  actions  for  trespass  to  personal  proper- 
ty the  burden  is  upon  the  plaintiff  to  show 
some  unlawful  interference  by  the  defendant 
with  property  then  in  the  actual  or  construct- 
ive possession  of  the  plaintiff  or  to  which  he 
then  held  title  ^^  with  a  right  to  the  posses- 
sion thereof. 

In  actions  for  trespass  to  real  property  the 
burden  is  on  the  plaintiff  to  prove  the  unlaw- 
ful entry  by  the  defendant  upon  land  which 
was  either  in  the  actual  possession  of  the 
plaintiff  or  which  he  had  title  to  with  the  right 
to  the  immediate  possession  of  it  at  the  time,^^ 
or  to  which  he  had  a  right  in  reversion  or  re- 
Johnson  Brinkman  Commission  Co.  v.  Central  Bank, 
116  Mo.,  556,  619;  22  S.  W.,  813;  38  Am.  St.  R., 
615,  619;  Hostler's  Aclmr.  v.  Skully,  Taylor  (N.  C), 
152;  1  Am.  Dec,  583. 

24  Boiling  V.  Kirby,  90  Ala.,  215;  7  So.,  914;  24 
Am.  St.  R.,  789,  792,  with  extended  note;  Union 
S.  Y.  &  T.  Co.  V.  Mallory,  supra. 

25  Johnson  v.  Wilson,  137  Ala.,  468,  470 ;  34  So., 
392;  97  Am.  St.  R.,  52,  53. 

26  Foster  v.  Fletcher,  7  T.  B.  Mun.,  534;  18  Am. 
Dec,  208. 


CHAP.  l]  NUISANCE  217 

mainder  in  cases  where  the  alleged  trespass 
would  work  an  injury  to  the  inheritance.^'^ 

In  actions  on  the  case  for  creating  or  main- 
taining a  nuisance  the  burden  is  on  the  plain- 
tiff to  show  his  title  to  the  land  or  the  incor- 
poreal right  therein  injuriously  affected  by 
such  nuisance,  the  existence  of  the  nuisance, 
the  responsibility  of  the  defendant  therefor,^^ 
that,  in  cases  where  the  nuisance  amounts  to 
a  public  one,  it  inflicts  upon  him  a  special  and 
particular  damage  differing  in  kind  from  that 
sustained  by  the  community  in  general,^^  and 
in  all  cases  the  nature  and  extent  of  the  dam- 
age incurred  by  him  therefrom. ^"^ 

In  actions  of  replevin  the  burden  is  on  the 
plaintiff  to  show  that  he  was  the  owner  of,  or 
lawfully  entitled  to  the  posession  of  the  prop- 

^■^  Cherry  v.  Lake  Drummond,  etc.,  Co.,  140  N.  C, 
432;  53  S.  E.,  138;  111  Am.  St.  R.,  850. 

28  Garland  v.  Aurin,  103  Tenn.,  555,  562;  53  S. 
W.,  940 ;  76  Am.  St.  R.,  699,  702. 

29  Acme  Fertilizer  Co.  v.  State,  34  Ind.  App.,  346, 
350;  72  N.  E.,  1057;  107  Am.  St.  R.,  190,  193; 
Kinney  v.  Koopman,  116  Ala.,  310,  321;  22  So., 
593;  67  Am.  St.  R.,  119,  123;  37  L.  R.  A.,  497; 
Sloss  Sheffield  Steel  Co.  v.  Johnson,  147  Ala.,  384; 
41  So.,  907;  119  Am.  St.  R.,  89. 

30  Balto.,  etc.,  R.  R.  Co.  v.  Quillan,  34  Ind.  App., 
330,  337 ;  107  Am.  St.  R.,  183,  188. 


218  PRODUCTION  OF   EVIDENCE  [PART  III 

erty  replevied  at  the  time  of  the  bringing  of 
the  suit,^^  and  that  said  property  was  then 
in  possession  of  the  defendant.^^  Where  the 
defendant  comes  lawfully  into  the  possession 
of  the  property  originally,  a  previous  demand 
for  it  must  be  made  in  order  to  show  the 
wrongful  detention  necessary  to  sustain  the 
action.^^ 

In  actions  for  assault  and  battery  the  bur- 
den is  upon  the  plaintiff  to  prove  the  fact  of 
the  assault  and  to  identify  the  person  by  whom 
it  was  committed  as  either  the  defendant  him- 
self or  his  servant ;  and  in  the  latter  case  to 
show  that  the  defendant  had  given  him  au- 
thority or  made  it  his  duty  to  act  in  respect 
to  the  business  he  was  engaged  in  at  the  time 
the  wrong  was  committed,  and  that  the  act 
was  done  in  the  course  of  his  said  employ- 
ment for  the  defendant. ^^    If  the  wrong  com- 

31  Shaddon  v.  Knott,  2  Swan.,  358 ;  58  Am  Dec, 
63,  65;  Oleson  v.  Merrill,  20  Wis.,  462;  91  Am.  B.. 
428. 

32  Eeid,  Murdock  &  Co.  v.  Ferris,  112  Mich.,  693, 
695;  71  N.  W.,  484;  67  Am.  St.  E.,  437,  439;  Sin- 
nott  V.  Feioch,  165  K  Y.,  444,  448;  59  N.  E.,  265; 
80  Am.  St.  E.,  736,  738,  note;  53  L.  E.  A.,  565. 

33  Galvin  v.  Bacon,  11  Me.,  28;  25  Am.  Dec,  258; 
Oleson  V.  Merrill,  20  Wis.,  462 ;  91  Am.  Dec,  429. 

34  Lake  Shore  Ey.  Co.  v.  Prentice,  147  U.  S.,  101, 


CHAP.  l]  ASSAULT  AND  BATTERY  219 

mitted  consisted  in  doing  in  an  unlawful  man- 
ner what  it  was  within  the  scope  of  the  ser- 
vant's employment  to  do  in  a  lawful  manner 
it  is  only  necessary  to  prove  the  latter  fact 
to  hold  the  master  responsible  for  it.  Thus 
where  a  conductor  was  authorized  to  put  off 
liis  train  passengers  who  refused  to  pay 
their  fare,  but  in  expelling  the  plaintiff  under 
such  circumstances  used  unnecessary  vio- 
lence his  employer  was  held  liable  for  such 
misconduct  of  its  conductor  although  it  had 
neither  previously  authorized  nor  subse- 
quently approved  it.^^ 

Although  the  law  will  always  presume 
some  damage,  even  if  it  may  be  only  nominal, 
to  have  been  suffered  from  an  unjustifiable 
asault,  substantial  damages  can  only  be  re- 
covered when  determined  by  a  verdict  to  be 
justified  under  the  circumstances  of  the  par- 
ticular case.  It  is  therefore  always  incum- 
bent upon  a  plaintiff  who  seeks  substantial 

109;  Barber  v.  City  of  Cape  Girardeau,  197  Mo., 
382,  392;  95  S.  W.,  230;  114  Am.  St.  R.,  763,  769. 
35  B.  &  0.  R.  R.  V.  Blocher,  27  Md.,  377,  286; 
B.  &  0.  R.  R.  V.  Barger,  80  Md.,  23;  30  A.,  560;  45 
Am.  St.  R.,  314;  26  L.  R.  A.,  220;  Lexington  Ry. 
Co.  V.  Cozine,  111  Ky.,  799;  64  S.  W.,  848;  Am.  St. 
R.,  930. 


220  PRODUCTION  OF   EVIDENCE  [PAET   III 

damages  to  produce  such  evidence  of  the  facts 
attending  the  assault  or  the  consequences 
which  followed  it  as  will  warrant  the  finding 
of  substantial  damages  by  a  jury. 

In  actions  for  malicious  prosecution  the 
burden  is  upon  the  plaintiff  to  show :  1st.  That 
a  criminal  prosecution  or  a  proceeding  to  put 
him  into  involuntary  bankruptcy  has  been  in- 
stituted against  him  for  an  offense  of  which 
he  was  innocent  (which  is  usually  done  by 
producing  an  authenticated  copy  of  the 
record).  2nd.  That  such  proceding  was  in- 
stituted by  the  procurement  of  the  defendant. 
3rd.  That  it  was  instituted  without  probable 
cause  known  to  the  defendant  at  the  time  it 
was  instituted.  4th.  That  the  defendant  was 
actuated  by  malice  against  the  plaintiff  in 
procuring  or  furthering  the  said  prosecution, 
and,  5th.  In  cases  where  substantial  damages 
are  sought,  to  show  the  facts  and  circumstan- 
ces from  which  the  jury  may  be  enabled  to 
estimate  the  extent  of  such  damages. ^^  The 
record  of  the  prosecution  terminating  in  an 
acquittal  or  a  nolle  pros,  which  is  the  founda- 
tion of  the  plaintiff's  cause  of  action  while 
indispensable  is  not  conclusive  nor  indeed  of 

36  Wheeler  v.  Nesbitt,  24  How.,  544,  550 ;  Stewart 
V.  Sonneborn,  98  U.  S.,  187. 


CHAP.  l]  MALICIOUS  PKOSECUTION  221 

itself  sufficient  proof  of  the  plaintiif' s  inno- 
cence of  the  charge  against  him  and  must  be 
supplemented  by  further  affirmative  evidence, 
for  it  is  one  thing  to  fail  to  obtain  a  convic- 
tion of  guilt  and  quite  another  thing  to  prove 
the  innocence  of  the  accused,  and  it  is  this  al- 
leged innocence  of  the  plaintiff  which  lies  at 
the  very  root  of  his  action. ^'^  It  is  not  enough 
to  show  that  the  plaintiif  was  in  fact  innocent 
of  the  charge  on  which  he  was  presented,  it 
must  be  further  shown  that  the  defendant  in- 
stigated the  prosecution  without  having  rea- 
sonable grounds  for  belief  at  the  time  he  so 
instigated  it  that  a  probable  cause  for  such 
prosecution  then  existed.^^  As  this  imposes 
upon  the  plaintiff  the  difficult  burden  of  prov- 
ing a  negative  it  will  be  satisfied  with  slight- 
er evidence  than  would  be  required  to  prove 
an  affirmative,^^  but  it  cannot  be  inferred 
merely  from  the  evidence  of  express  malice 
on  the  part  of  the  defendant,  for  the  more 
reasonable  the  grounds  that  the  latter  might 
have  for  believing  the  plaintiff  to  have  misap- 
propriated his  property  the  greater  would  be 
the  temptation  to  entertain  feelings  of  ex- 

37  Stewart  &  Sonneborn,  98  U.  S.,  187. 

38  Whitfield  V.  Westbrook,  40  Miss.,  34. 

39  Haupt  V.  Pohlman,  16  Abb.  Pr.,  301. 


222  PRODUCTION  OF  EVIDENCE  [PART  III 

press  hostility  towards  him ;  neither  can  want 
of  probable  cause  be  inferred  from  the  unsuc- 
cessful result  of  the  prosecution  for  we  all 
know  that  many  prosecutions  fail  for  which 
there  was  very  strong  probable  cause."*'^ 
There  must  be  some  additional  evidence  that 
probable  cause  was  wanting.  Proof  of  the 
plaintiff's  previous  good  character  has  been 
received  for  this  purpose.^^ 

In  actions  for  false  arrest  and  imprison- 
ment the  burden  is  on  the  plaintiff  to  show 
that  he  has  been  unlawfully  detained  or  re- 
strained of  his  liberty,  either  with  or  with- 
out process  of  law,  by  the  plaintiff  or  by  some 
one  acting  under  his  direction  or  command 
or  by  his  authority  and  with  his  subsequent 
approval.^^  But  a  defendant  cannot  be  held 
answerable  in  this  form  of  action  for  acts 
done  upon  his  information  or  suggestion  by 

40  Stewart  v.  Sonneborn,  98  IT.  S.,  187. 

41  Blizzard  v.  Hayes,  46  Ind.,  166 ;  15  Am.  Rep., 
291. 

42  Pollock  on  Torts,  191 ;  Eich  v.  Mclnernay,  103 
Ala.,  345;  15  So.,  663;  49  Am.  St.  R.,  32;  Tryon  v. 
Pingree,  112  Mich.,  338,  345;  70  N".  W.,  905;  67 
Am.  St.  R.,  398,  404,  and  note  p.  408  (quoting  Comer 
V.  Knowles,  17  Kan.,  441)  ;  37  L.  R.  A.,  222;  Hebrew 
V.  Pulis,  73  ¥.  J.,  L.,  621;  64  A.,  12;  118  Am.  St. 
R.,  716,  and  note. 


CHAP.  l]     FALSE  AREEST  AND  IMPRISONMENT  223 

an  officer  of  the  law  in  the  exercise  of  his 
proper  authority  or  discretion  and  not  done 
as  merely  ministerial  acts.  Thus^a  defendant 
upon  whose  testimony  a  magistrate  issued  a 
warrant  under  which  the  plaintiff  was  unlaw- 
fully imprisoned  is  not  liable  in  an  action  for 
false  imprisonment  because  he  did  not  set  a 
ministerial  officer  in  motion,  but  a  judicial 
officer  whose  opinion  and  judgment  were  in- 
terposed between  the  charge  and  the  impris- 
onment.^^ Such  a  person  however,  might  be 
held  liable  in  an  action  for  malicious  prosecu- 
tion if  the  arrest  had  been  made  by  his  pro- 
curement.^* 

In  actions  for  false  imprisonment  malice 
need  not  exist  though  if  present  it  may  be  con- 
sidered in  aggravation  of  damages.'*^  In 
cases  of  arrests  without  warrants  which 
would  be  held  unlawful  in  the  absence  of  prob- 
able cause  for  making  them,  it  is  submitted 
that  the  burden  of  proof  as  to  the  existence 
of  such  cause  is  cast  upon  the  defendant  as 
part  of  his  case,  and  the  plaintiff  is  not  re- 

48  Willes,  J.,  in  Austin  v,  Dowling,  L.  R.,  S.  C.  P., 
530,  540;  Rich  v.  Mclnemay,  and  other  cases, 
supra. 

44  Tryon  v.  Pingree,  supra  and  note. 

*^  Rich  V.  Mclnernay,  supra. 


224  PRODUCTION  OF  EVIDENCE     [PART  TH 

quired  to  prove  affirmatively  that  there  was 
no  such  cause,  as  in  actions  for  malicious 
prosecution.^^ 

In  actions  for  slander  or  libel  the  burden 
is  on  the  plaintiff  to  show:  1st.  The  utter- 
ance of  the  alleged  slanderous  words,  substan- 
tially as  set  forth  in  the  pleadings,  in  the 
hearing  of  some  person  other  than  the  plain- 
tiff, who  is  capable  of  understanding  them  as 
spoken,^^  or  the  publication  of  the  alleged  li- 
bel in  the  exact  words  set  forth  in  the  declar- 
ation to  some  such  third  person  by  defend- 
ant.'*^ 2nd.  If  the  words  spoken  or  the  al- 
leged libel  do  not  appear  to  be  actionable  on 

46  See  note  67  Am.  St.  E.,  p.  415,  on  probable 
cause  and  cases  there  cited.  I  have  not  found  any 
case  where  the  burden  of  proving  want  of  probable 
cause  was  imposed  on  the  plaintiff  in  an  action  for 
false  arrest  and  imprisonment. 

4^  Odgers,  L.  &  S.,  pp.  Ill,  537,  538,  540;  Hirsch 
V.  Eingwalt,  3  Yates  (Pa.),  508;  2  Am.  Dec,  392; 
Desmond  v.  Brown,  39  Iowa,  53;  4  Am.  Rep.,  194; 
Odgers,  L.  &  S.,  150;  Hurtort  v.  Weines,  27  Iowa, 
134;  Dallavo  v.  Snider,  143  Mich.,  542;  107  N.  W., 
271;  114  Am.  St.  Eep.,  684,  686. 

48  Odgers,  L.  &  S.,  536  ;  Bell  v.  Byron,  13  East,  554; 
Tabart  v.  Tipper,  1  Camp.,  350;  Colvard  v.  Black, 
110  Ga.,  642;  36  S.  E.,  80;  Odgers,  L.  &  S.,  150; 
Spaits  V.  Poundstone,  87  Ind.,  322 ;  44  Am.  Eep.,  773. 


CHAP.  l]  SLANDER  AND  LIBEL  '  225 

their  face  but  are  made  so  by  innuendo,  the 
facts  establishing  such  innuendo^^  3rd.  If 
the  words  or  publication  are  privileged  the 
existence  of  express  malice  to  make  them 
actionable.^^  4th.  Any  facts  or  circum- 
stances to  be  considered  by  the  jury  in  esti- 
mating the  general  damages  allowed  by  them 
and  also  any  special  damages  properly  set 
forth  and  claimed  in  the  pleadings."*  The 
falsity  of  the  alleged  defamatory  publication 
is  always  presumed  unless  there  is  a  plea  of 
justification  in  which  case  the  burden  of  prov- 
ing the  charge  to  be  true  is  always  upon  the 
defendant  who  justifies.^^ 

49  Eussell  V.  Kelly,  44  Cal.,  641 ;  13  Am.  Rep., 
169,  171;  Odgers,  L.  &  S.,  113;  Capital  and  Conatie 
Bank  v.  Harity,  L.  R.,  5 ;  C.  P.,  Div.  514. 

50  Nichols  V.  Eaton,  110  Iowa,  509,  512;  81  N.  W., 
792;  80  Am.  St.  E.,  319;  322;  47  L.  R.  A.,  483; 
Bearse  v.  Bass,  88  Me.,  521,  544;  34  A.,  411 ;  51  Am. 
St.  R.,  446,  452. 

5*  Odgers,  L.  &  S.,  *289,  Morey  v.  Morning  Journal 
Assc,  123  N.  Y.,  207;  23  N".  E.,  161;  20  Am.  St.  R., 
730;  9  L.  R.  A.,  621;  McDufi  v.  Detroit  Evening 
Journal  Co.,  84  Mich.,  1 ;  47  N.  W.,  671 ;  22  Am.  St. 
R.,  673. 

52  Odgers,  L.  &  S.,  *169;  Conroy  v.  Pittsburgh 
Times,  139  Pa.  St.,  339 ;  21  A.,  151 ;  23  Am.  St.  R., 
188,  191;  11  L.  E.  A.,  725. 

15 


226  PRODUCTION  OF  EVIDENCE  [PART   III 

In  criminal  prosecutions  for  libel  proof  of 
publication  to  a  third  party  is  not  required  as 
the  law  presumes  that  a  false  and  scurrilous 
communication  made  directly  to  the  person 
libelled  would  be  a  public  offense  as  tending 
to  provoke  a  breach  of  the  peace.^^ 

The  speaking  of  the  slanderous  words  may 
be  proved  by  any  person  who  heard  them,  but 
the  publication  of  a  libellous  writing  must  be 
proven  by  the  production  of  the  writing  it- 
self excepting  in  cases  where  proof  by  secon- 
dary evidence  is  admissible,^^  and  the  defend- 
ant cannot  be  required  to  give  evidence  of 
publication  if  he  claim  his  privilege  that  such 
testimony  might  subject  him  to  the  risk  of 
a  criminal  prosecution.^^  If  the  defense  be 
made  that  the  words  shown  by  the  plaintiff 
to  have  been  spoken  or  the  writing  shown  by 
him  to  have  been  published,  constitute  a  priv- 
ileged communication,  the  burden  is  on  the 
defendant  to  prove  all  the  facts  and  circum- 

63  state  V.  Avery,  7  Conn.,  266;  18  Am.  Dec,  105, 
106. 

54  Odgers,  L.  &  S.,  *535,  *536;  Abb.  Tr.  Ev.,  Ch. 
XLIII,  9 ;  Winter  v.  Donovan,  8  Gill,  370,  375. 

55  Odgers,  L.  &  S.,  *504,  *534;  Abb.  Tr.  Ev.,  Ch. 
XLIII,  7. 


CHAP.  l]  ALIENATING   AITECTIONS  227 

stances  required  to  bring  sucli  words  or  writ- 
ing within  the  privilege  claimed.^ *^ 

In  suits  by  a  husband  for  damages  for 
alienating  his  wife's  affections,  or  by  a  wife 
(in  jurisdictions  where  she  has  a  right  to 
bring  such  suit)^"  for  damages  for  alienating 
her  husband's  affections,  the  burden  upon  the 
plaintiff  to  prove  the  marriage  may  be  dis- 
charged by  evidence  of  cohabitation  and  gen- 
eral repute  of  being  man  and  wife  ^^  and  no 
proof  of  adulterous  relations  between  the  de- 
fendant and  the  plaintiff's  spouse  is  needed, 
for  the  cause  of  action  extends  to  all  cases  of 
wrongful  interference  in  the  family  atfairs 
of  others  whereby  the  wife  is  induced  to  leave 
her  husband  or  so  conduct  herself  that  the 
comfort  of  married  life  is  destroyed  or  vice 
versd.'^^  If  however  the  interference  is  by 
the  wife's  parents  on  an  assumption  that  she 
is  ill  treated  to  an  extent  justifying  her  in 
leaving  her  husband  it  raises  the  presumption 
that  they  have  acted  from  commendable  mo- 

56  Odgera,  L.  &  S.,  *269. 

"Wolf  V.  Frank,  92  Md.,  138;  48  A.,  132;  52 
L.  E.  A.,  102. 

58  Abb.  Tr.  Ev.,  Ch.  XLV,  1. 

59  Cooley  on  Torts,  *225 ;  Callis  v.  Merriweather, 
98  Md.,  361,  363;  57  A.,  201;  103  Am.  St.  E.,  404. 


228  PRODUCTION  OF   EVIDENCE  [PART   III 

lives,  and  a  clear  case  of  want  of  justification 
must  be  shown  by  the  plaintiff  in  order  to  sus- 
tain his  action  against  them.'^'' 

In  actions  hy  a  master  for  enticing  away 
his  servant,  the  burden  is  on  him  to  show  that 
the  latter  was  actually  in  his  service  at  the 
time,  and  that  the  defendant's  inducement 
was  the  moving  cause  of  the  desertion  and  he 
must  also  give  some  evidence  of  the  defend- 
ant's knowledge  of  the  relation.®^ 

When  a  parent  brings  an  action  for  the  se- 
duction of  his  daughter  their  relationship  may 
be  proved  in  the  manner  hereinbefore  set 
forth,^^  and  proof  of  the  slightest  degree  of 
service  rendered  by  the  daughter  up  to  the 
time  of  her  seduction  will  be  sufficient  to  main- 
tain the  action  if  followed  by  evidence  from 
which  any  loss  of  such  service  may  be  infer- 
red, as  for  instance  pregnancy  or  impairment 
of  health,  but  in  the  absence  of  proof  of  actual 
services  rendered  by  the  daughter  to  her 
father,  his  action  will  be  defeated  by  proof 

60  Cooley  on  Torts,  *225 ;  Abb.  Tr.  Ev.,  Ch.  XLV, 
1;  Hutcheson  v.  Peck,  5  Johns.,  196;  Huling  v.  Hul- 
ing,  32  111.  App.,  519. 

61  Bixby  V.  Dunlap,  56  N.  H.,  456;  22  Am.  Rep., 
475. 

62  See  §  83  f.,  ante. 


CHAP.  l]  CRIMINAL  CONVERSATION  229 

that  her  parents'  marriage  was  void,  as  in 
such  case  the  father  would  have  no  legal 
claim  for  her  service.*^^ 

It  is  well  established  that  in  an  action 
brought  by  a  husband  for  criminal  conversa- 
tion with  his  wife,  that  the  burden  is  upon 
him  of  proving  his  marriage  by  direct  evi- 
dence of  a  celebration,  as  the  law  does  not  re- 
gard cohabitation  and  reputation  alone  suffi- 
cient to  sustain  a  judgment  that  the  wife  was 
guilty  of  the  crime  of  adultery.*''* 

He  must  also  show  that  the  marriage  con- 
tinued to  subsist  giving  him  the  right  to  the 
society  and  assistance  of  his  wife  at  the  time 
of  the  alleged  intercourse,  for  a  legal  and 
permanent  separation  at  the  time  would  be  a 
bar.'^^  He  must  also  prove  the  criminal  inter- 
course,^^ and  give  some  evidence  as  to  the 
previous  affection  and  domestic  happiness  of 
himself  and  wife  in  order  to  establish  his 

^^  Howland  v.  Howland,  114  Mass.,  19  Am.  R., 
381. 

«4Hutchiiis  V.  Kimmell,  31  Mich.,  136;  18  Am. 
Eep.,  164. 

65  Harvey  v.  Watson,  7  Mann  &  Gr.,  644. 

66  Wood  V.  Matthews,  47  Iowa,  409 ;  Bigaonette  v. 
Paulet,  134  Mass.,  123 ;  45  Am.  Eep.,  307 :  Cross  v. 
Grant,  62  N.  H.,  675;  13  Am.  St.  E.,  607;  Tucker 
v.  Coleman,  193  U.  S.,  473. 


230  PRODUCTION  OF  EVIDENCE  [PART  III' 

claim  for  damages.  Such  evidence  may  in- 
clude expressions  of  affection  and  regard 
used  by  either  in  the  presence  of  the  other 
and  the  wife 's  manner  of  speaking  and  writ- 
ing of  her  husband  even  when  absent  from 
him,  and  their  letters  to  each  other.^^ 

In  actions  of  ejectment  to  effect  the  title 
to  or  possesion  of  real  property,  as  the  plain- 
tiff must  recover  upon  the  strength  of  his  own 
title,  the  burden  is  upon  him  to  show  affirm- 
atively that  he  has  a  good  title  or  a  valid  right 
to  the  immediate  possession  of  the  land  in 
controversy.  The  fact  that  the  occupant's 
title  is  defective  or  even  that  he  has  no  title 
at  all  will  not  help  the  plaintiff.^^ 

§87.  Burden  of  proof  when  limitations 
pleaded.— When  the  statute  of  limitations  is 
pleaded  by  the  defendant  this  imposes  upon 
the  plaintiff  the  burden  of  making  out  a  case 
which  is  not  barred  by  the  terms  of  the  stat- 
ute, either  by  showing  that  his  cause  of  action 

67  Abb.  Tr.  Ev.,  Ch.  XLVI,  3 ;  Edwards  v.  Crock, 
4  Esp.,  39 ;  Wilhs  v.  Bernard,  8  Bing.,  376 ;  Trelaw- 
ney  v.  Coleman,  1  Barn.  &  Aid.,  90. 

68McCool  V.  Smith,  1  Black  (U.  S.),  459,  470; 
Henderson  v.  Wanamaker,  80  Fed.  E.,  234 ;  King  v. 
MulHns,  171  U.  S.,  404,  436,  437. 


CHAP.  l]  LIMITATION  231 

arose  within  the  statutory  period  so 
pleaded,*^^  or  that  the  bar  of  the  statute  has 
been  removed  by  a  new  promise  or  other  evi- 
dence by  the  defendant,  or  that  some  circum- 
stance existed  which  either  prevented  the 
statutory  limitation  from  beginning  to  run 
against  the  plaintiff,  or  after  it  began  to  run 
suspended  its  operation  long  enough  to  have 
prevented  it  from  barring  his  action  before 
his  suit  was  brought."*^  If  the  contract  was 
made  without  the  state  and  this  fact  is  proved 
the  burden  is  shifted  to  the  defendant  to  show 
residence  within  the  state  for  the  Statutory 
period.^^ 

§  88.    When  burden  of  proof  on  defendant. 

As  soon  as  the  plaintiff  has  made  out  a 
prima  facie  case  by  evidence  of  facts  which, 
if  believed,  would,  in  the  absence  of  further 
testimony,  on  the  part  of  the  defendant,  be 
sufficient  to  entitle  him  to  a  verdict,  the  bur- 

«9  2  Gr.  Ev.,  §  431 ;  House  v.  Arnold,  122  N.  C, 
220;  29  S.  E.,  334,  but  see  Goodell  v.  Gibbons,  91 
Va.,  608;  22  S.  E.,  504. 

''^  Somerville  v.  Hamilton,  4  Wheat.,  230,  234 ; 
Gross  V.  Disney,  95  Tenn.,  592 ;  32  S.  W.,  632 ;  Con- 
don V.  Enger,  113  Ala.,  233 ;  21  So.,  R.  227. 

^iCoIe  V.  Jessup,  2  Barb.,  309,  314;  Mayer  v. 
Friedman,  7  Hun.,  218 ;  aff .,  69  N.  Y.,  608. 


232  PRODUCTION  OF   EVIDENCE  [I'ART    III 

den  is  imposed  upon  the  defendant  to  either 
contradict  some  of  the  material  facts  thus  set 
up  by  the  plaintiff,  or  to  introduce  evidence  of 
new  facts  that  will  furnish  a  good  defense 
by  over-coming  some  disputable  presump- 
tions on  which  the  plaintiff  relies,  or  by  rais- 
ing a  stronger  presumption  in  favor  of  the 
defendant,  or  which  will  defeat  the  plaintiff's 
right  of  action  by  avoidance  in  some  way. 
The  burden  of  proving  such  new  facts  thus  in- 
troduced by  the  defendant  is  imposed  upon 
him  in  the  same  way  as  the  burden  of  estab- 
lishing a  prima  facie  case  was  originally  upon 
the  plaintiff.  Thus  if  in  a  suit  by  the  payee 
against  the  maker  of  a  promissory  note  the 
latter  sets  up  the  defense  that  it  was  given 
without  consideration,  which  if  believed 
would  overcome  the  legal  disputable  pre- 
sumption that  it  was  given  for  value,  the  bur- 
den is  upon  the  defendant  to  establish  by  af- 
firmative proof  the  alleged  want  of  consider- 
ation and  his  failure  to  do  so  will  entitle  Ms 
adversary  to  a  verdict.'^^  gQ  also  where  in  an 
action  on  the  case  for  negligence  the  de- 
fendant sets  up  the  defense  of  contributory 
negligence  on  the  part  of  the  plaintiff,  which 

72  Ellicott  V.  Martin,  6  Md.,  509 ;  61  Am.  Dec, 
327 ;  1  Dan.  Neg.  Inst.,  139. 


CHAP.  l]  WHEN  BURDEN  SHIFTED  233 

however  does  not  appear  affirmatively  from 
the  evidence  offered  by  the  plaintiff,  then 
the  burden  is  upon  the  defendant  to  show 
contributory  negligence  by  the  plaintiff  and  if 
he  fails  to  do  so,  the  defense  can  not  be  sus- 
tained.'^ As  already  heretofore  stated,  the 
burden  of  proof  in  any  proceeding  lies  at  first 
on  that  party  who  substantially  asserts  the 
affirmative  of  the  issue  and  against  whom  the 
judgment  of  the  court  would  be  given  if  no 
evidence  were  produced  on  either  side,  re- 
gard being  had  to  any  presumption  which 
may  appear  from  the  pleadings,"^  but  as  the 
proceeding  goes  on  the  burden  of  proof  may 
be  shifted  from  tlie  party  on  whom  it  rested 
at  first  by  his  proving  facts  which  raise  a  pre- 
sumption in  his  favor.'^^    Thus  where  a  mar- 

73Eailroad  Co.  v.  Gladmon,  15  Wall.,  401;  Indian- 
apolis, etc.,  R.  R.  Co.  V.  Horst,  93  U.  S.,  291,  298. 

7-*  §§  78,  79,  ante. 

^5  Ste.  Dig.,  Ev.,  art.  96 ;  Clement  v.  Moore,  6 
Wall.,  299 ;  Great  West.  E.  E.  v.  Bacon,  30  111.,  347, 
352;  Goodwin  v.  Smith,  72  Ind.,  113;  37  Am.  E., 
144,  note;  City  of  Fort  Smith  v.  Dodson,  51  Ark., 
417;  11  S.  W.,  687;  14  Am.  St.  E.,  62;  14  L.  E.  A., 
252;  Lake  v.  Minn.,  etc.,  Assn.,  61  Minn.,  96,  100; 
63  N.  W.,  261 ;  52  Am.  St.  E.,  538,  578;  42  L.  E.  A., 
809;  Dorsey  v.  Brigham,  177  111.,  250,  262;  52  N.  E., 
303;  69  Am.  St.  E.,  228,  236. 


234  PRODUCTION  or  evidence        [part  III 

ried  woman  is  accused  of  theft  and  pleads 
not  guilty,  the  burden  of  proof  is  on  the  pros- 
ecution, but  this  is  shifted  to  the  defendant 
upon  proof  that  she  was  in  possession  of  the 
stolen  goods  soon  after  the  theft,  and  she  may 
then  by  showing  that  she  stole  them  in  the 
presence  of  her  husband  again  shift  the  bur- 
den on  the  prosecution  to  show  that  she  was 
not  coerced  by  him.'^^ 

§  89.  Quantity  of  evidence  required  to  sus- 
tain burden.— In  civil  cases  the  party  who  has 
the  burden  of  proof  on  any  issue  must  pro- 
duce evidence  which,  if  believed  by  the  jury, 
would  in  the  opinion  of  the  court  be  legally 
sufficient  to  enable  them  to  find  the  facts  nec- 
essary to  entitle  the  proponent  to  a  verdict 
on  such  issue,  for  unless  such  legally  suffi- 
cient evidence  is  forthcoming  the  jury  will 
not  be  permitted  to  render  a  verdict  in  his 
favor.  It  does  not  follow,  however,  that  evi- 
dence legally  sufficient  to  sustain  a  verdict 
must  be  always  practically  efficient  to  pro- 
cure one,  for  it  often  happens  that  the  jury 
do  not  believe  the  evidence  or  some  part  of 
it,  either  because  of  its  inherent  improb- 
ability and  a  want  of  confidence  in  the  ve- 

■^6  Ste.  Dig.,  Ev.,  art.  95  (6) ;  citing  1  Euss.  Cri., 
33  and  2  do..  337. 


CHAP.  l]  BURDEN   OF   PROOF  235 

racity  of  the  witnesses  or  because  of  conflict- 
ing evidence  either  direct  or  circumstantial 
in  the  case  before  them.  The  burden  of 
proof  therefore  requires  the  production  of 
evidence  both  legally  sufficient  in  the  opinion 
of  the  judge  and  practically  efficient  in  the 
judgment  of  the  jury  to  prove  all  the  facts 
necessary  to  establish  the  case  of  the  party  on 
whom  it  rests.  Where  the  testimony  is  con- 
flicting it  is  said  that  the  jury  should  decide 
according  to  the  preponderance  of  the  evi- 
dence,"^^  but  as  it  is  left  absolutely  to  the  dis- 
cretion of  the  jurors  to  determine  how  much 
or  how  little  weight  they  may  assign  to  the 
testimony  of  each  particular  witness,  the 
question  of  preponderance  is  one  practically 
resting  wholly  within  their  discretion  which  is 
limited  only  by  the  power  of  the  judges  to 
grant  a  new  trial  whenever  in  their  discretion 
the  requirements  of  justice  may  demand  it 
under  all  the  circumstances  of  any  particular 
case. 

In  criminal  prosecutions  the  burden  is  al- 
ways upon  the  prosecutor  to  establish  by 
proof  beyond  a  reasonable  doubt  all  the  facts 
required  to  warrant  the  conviction  of  the 
accused  of  the  crime  or  misdemeanor  whereof 

"  3  Gr.  Ev.,  §  S9. 


236  PRODUCTIOX  OF   EVIDENCE  [PART   III 

he  stands  indicted,  which  is  to  say  that  the 
facts  thus  proved  must  coincide  with  the  hy- 
pothesis of  the  guilt  of  the  accused  and  also 
be  legally  sufficient  to  establish  it,  and  must 
likewise  be  inconsistent  with  any  other  hy- 
pothesis or  with  the  reasonable  supposition  of 
his  innocenceJ® 

As  already  stated  in  a  previous  section  this 
rule  making  it  obligatory  to  discharge  the 
burden  of  establishing  the  commission  of  a 
criminal  act  by  the  production  of  proof  be- 
yond a  reasonable  doubt  has  been  extended 
in  England  and  in  some  of  the  States  to  cases 
where  the  question  of  the  commission  of  such 
criminal  act  becomes  relevant  in  the  course  of 
a  civil  proceeding  ;'^^  but  the  weight  of  Amer- 
ican authority  is  to  the  effect  that  for  all  pur- 
poses of  such  civil  action  the  question  is  to 
be  decided  upon  the  preponderance  of  the 
evidence  before  the  jury,  since  the  reason  for 
requiring  greater  strictness  of  proof  in  crim- 
inal cases  would  not  be  applicable  here.*" 

'8  Ibid.  See  definition  of  reasonable  doubt  in 
Commonwealth  v.  Webster,  5  CnsL.,  296,  313,  317, 
319;  52  Am.  D.,  711,  and  in  Holt  v.  United  States, 
218  U.  S.,  245,  253. 

■^s  §  79  ante,  and  note  7. 

80  Scott  V.  Insurance  Co.,  1  Dill.  C.  C,  105,  207; 
21  Fed.  Cas.,  No.  12,533,  p.  883;  Welch  v.  Juggen- 
heimer,  56  Iowa,  Hi  41  Am.  R.,  76. 


CHAP.   l]  BURDEN  OF  PROOF  237 

For  those  cases  in  which  the  testimony  of 
a  single  witness  is  deemed  insufficient  to  sus- 
tain the  burden  of  proof  unless  supported  by 
corroborative  evidence,  see  §§  104  to  109  in- 
clusive, post. 

§89a.  When  burden  shifted  by  fraud  or 
undue  influence.  In  actions  by  indorsees  of 
negotiable  paper  against  the  makers  or 
acceptors,  proof  by  the  latter  that  such 
paper  was  obtained  by  the  fraud  of  the 
payee  imposes  upon  the  plaintiff  the  bur- 
den of  proving  himself  to  be  a  bond  fide 
purchaser  for  value  in  due  course.^*^^  And 
whenever  there  is  question  as  to  the  validity 
of  any  transaction  between  parties  standing 
in  such  relation  that  the  one  reposes  con- 
fidence in  the  other,  the  burden  is  always 
imposed  upon  the  party  in  whom  such  con- 
fidence is  placed  to  show  affirmatively  that 
such  transaction  was  in  good  faith  and  valid, 
and  that  the  authority  or  influence  derived 

80^  Totten  V.  Bucy,  57  Md.,  446 ;  King  v.  Deane, 
139  U.  S.,  166,  173 ;  Commercial  Bank  of  Danville 
V.  Burgwyn,  110  N.  C,  237 ;  17  L.  R.  A.,  326 ;  14 
S.  E.  623;  30  Am.  St.  R.,  p.  324;  extended  note  to 
Bedell  v.  Herring.  Uniform  Negotiable  Instru- 
ments Act,  Sec.  59. 


238  BURDEN  OF  PROOF  [   CHAP,    i 

from  such  confidential  relation  to  the  other 
party  was  not  abused — the  nature  and 
amount  of  the  evidence  required  for  this 
purpose  being  dependent  upon  the  nature 
of  the  confidence  reposed  and  upon  the  char- 
acter of  the  transaction.^*^" 

s^'' Fisher  v.  Bishop,  108  N.  Y.,  25;  2  Am.  St.  R., 
357;  15  N.  E.,  331;  Darlington's  Est.,  147  Pa.  St., 
624;  30  Am.  St.  R.,  776;  23  A.,  1046.  Stev.  Dig. 
Art,  97  A. ;  Huguenin  v.  Basely,  2  W.  &.  T.  Lea 
Cas.  Eq.,  1156. 


CHAPTEE  11. 

BIGHT  TO  BEGIN. 

§  90.  Party  who  begins  must  produce  his 
entire  case.— The  right  to  begin  in  the  pro- 
duction of  evidence  is  mainly  determined  by 
the  burden  of  proof,  and  is  often  of  much  im- 
portance; for  in  cases  where  there  is  but  a 
single  issue  of  fact  to  be  tried,  the  party  who 
begins  must  exhaust  his  evidence  in  the  first 
instance,  and  may  not  first  rely  upon  a  prima 
facie  case,  and,  after  that  has  been  shaken 
by  his  adversary's  proof,  call  other  evidence 
to  confirm  it.^  After  the  adversary  has  con- 
cluded his  evidence,  the  party  who  began  can 
only  adduce  further  evidence  for  the  purpose 
of  contradicting  the  affirmative  facts  intro- 
duced into  the  case  by  the  other  side,  and  may 
not  attempt  to  disprove  them  by  testimony 
which  merely  goes  to  confirm  the  allegations 
originally  made  by  his  own  pleadings,  which 
are  inconsistent  with  his  adversary's  case. 
Thus,  in  an  action  by  the  indorsee  of  a  bill 

1  Tay.  Ev.,  §  386. 

289 


240  PEODUCTION  OF  EVIDENCE  [PART   III 

against  the  acceptor,  where  issue  was  joined 
on  a  plea  denying  the  indorsement,  the  plain- 
tiff was  not  allowed  to  rest  his  case  at  first 
on  proof  of  the  indorser's  handwriting,  and, 
after  evidence  for  the  defense  had  been  given 
that  he  was  himself  too  poor  to  have  dis- 
counted the  bill,  and  had  disclaimed  all  knowl- 
edge of  it,  to  prove  that  in  fact  he  had  dis- 
counted the  instrument.^  So,  also,  in  an  ac- 
tion by  the  endorser  of  negotiable  paper 
against  the  maker  when  the  defendant  set  up 
in  his  pleadings  that  the  instrument  was  ob- 
tained by  the  fraud  of  the  payee  and  that  the 
plaintiff  was  not  a  bond  fide  holder  for  value 
in  due  course  without  notice  of  the  fraud,  the 
burden  of  proof  is  put  upon  the  plaintiff  to 
show  that  he  is  such  a  bond  fide  holder  and  in 
order  to  establish  this  fact  by  any  proof  be- 
sides disputable  presumption  of  law  to 
this  effect,  he  must  offer  all  such  evidence  in 
chief,  and  will  not  be  permitted  to  introduce 
it  in  rebuttal;  but  if  the  defendant  does  not 
raise  this  defense  by  his  pleadings  and  goes 

2  Stewart  v.  Lansing,  104  U.  S.,  505,  509 ;  Vos- 
burgh  V.  Diefendorf,  119  N.  Y.,  357;  23  N.  E.,  801; 
16  Am.  St.  R.,  836;  Cover  v.  Myers,  75  Md.,  426;  23 
A.,  850;  32  Am.  St.  R.,  394;  note  to  Bedell  v.  Ber- 
ing, 11  Am.  St.  R.,  pp.  324,  325. 


CHAP.  Il]  RIGHT  TO  BEGIN  241 

to  trial  on  the  general  issue  plea  and  instead 
introduces  evidence  to  show  that  the  note  was 
fraudulently  obtained  and  that  the  plaintiff 
had  notice  of  the  fraud,  the  plaintiff  may  of- 
fer evidence  in  rebuttal  to  contradict  any  evi- 
dence thus  introduced  by  the  defendant.^ 

§  91.  Plaintiff  has  right  to  begin  when  the 
burden  of  any  of  the  issues  is  on  him,  or  he 
seeks  substantial  unliquidated  damages.— The 
general  rule  on  this  subject  is,  that  the  party 
on  whom  the  burden  of  proof  lies,  as  devel- 
oped on  the  record,  must  begin,  unless  his  ad- 
versary will  at  the  trial  admit  the  whole 
prima  facie  case  of  such  party,  and  could  not 
by  his  pleading  have  made  this  admission  at 
an  earlier  period.^  But  when  the  record  con- 
tains several  issues,  and  the  burden  of  prov- 
ing any  one  of  them  lies  on  the  plaintiff,  he  is 
entitled  to  begin,  provided  he  will  under- 
take to  give  evidence  upon  it  ;  ^  and  there- 
fore the  plaintiff  is  always  entitled  to  begin, 
whenever  he  seeks  substantial  unliquidated 
damages,  though  the  general  issue  be  not 

3  Jacobs  V.  Tarleton,  11  Ad.  &  E.  (Q.  B.,  N.  S.), 
431. 

^  Tay.  Ev.,  §  379 ;  Doe  v.  Smart,  11  M.  &  Eob.,  476. 

«  Tay.  Ev.,  §  384;  Abb.  Tr.  Bf.,  p.  30;  1  Thomp. 
Trials,  §  228 ;  Cawlins  v.  Disbrow,  2  M.  &  Eob.,  328. 

1  6 


242  PRODUCTION  OF   EVIDENCE  [PART   III 

pleaded,  and  the  affirmative  lies  upon  the  de- 
fendant; for  in  such  cases  the  burden  of 
proving  the  amount  of  the  damage  actually 
sustained  is  always  upon  the  plaintiff.^  In 
cases  where  several  issues  are  joined,  some  of 
which  lie  on  either  party,  it  is  optional  with 
the  plaintiff  either  to  go  into  his  whole  case, 
in  the  first  instance  ,or  merely  to  adduce  evi- 
dence in  support  of  those  issues  which  he  is 
bound  to  prove,  reserving  the  right  of  rebut- 
ting the  defendant 's  proofs  in  the  event  of  the 
latter  establishing  a  prima  facie  case  with  re- 
spect to  the  issues  which  lie  upon  him.  If 
the  latter  course  he  pursued,  the  defendant 
may  have  a  special  reply  on  the  plaintiff's 
fresh  evidence,  while  the  plaintiff  will  be  en- 
titled to  the  general  reply  on  the  whole  case. 
But  if  the  plaintiff,  at  the  outset,  elects  to  go 
into  his  whole  case  by  calling  any  evidence  to 
repel  the  case  of  the  defendant,  he  will  not  be 
permitted  to  give  any  evidence  in  reply ;  for, 
if  such  a  privilege  were  allowed  to  the  plain- 
tiff, the  defendant,  in  common  justice,  might 
claim  the  same,  and  the  proceedings  might  be 
extended  to  a  very  inconvenient  length.'^     As 

«  Tay.  Ev.,  §  381 ;  Abb.  Tr.  Bf.,  p.  33 ;  1  Thomp. 
Trials,  §  230 :  Mercer  v.  Whall,  5  Q.  B.,  462. 

7  Tay.  Ev.,  §  385 ;  Browne  v.  Murray,  Ey.  &  M., 
254. 


CHAP.  II ]  OBDEit    Oi    PROOF  243 

already  stated,  in  cases  where  there  is  but  a 
single  issue,  the  party  upon  whom  the  bur- 
den of  proof  lies  must  put  forth  all  his  evi- 
dence iu  the  first  instance.^  All  questions  of 
the  mere  order  of  proof  are  left  largely  to  the 
discretion  of  the  judge,  who  has  a  right  (in 
the  absence  of  any  positive  rule  of  court  to 
the  contrary)  to  relax  the  strict  rules  by  re- 
ceiving any  competent  evidence  from  either 
party,  at  any  stage  of  the  trial  before  the 
case  is  given  to  the  jury,  if  in  his  opinion  the 
ends  of  justice  require  it.  In  practice,  how- 
ever, this  discretion  is  seldom  exercised  ex- 
cept to  let  in,  out  of  its  regular  order,  the 
proof  of  some  merely  technical  or  formal 
matter,  which  had  evidently  been  omitted 
through  inadvertence.^ 

8  Ante,  §  90. 

9Phila.  &  Trenton  E.  R.  v.  Stimpson,  14  Pet., 
448,  463 ;  Bannon  v.  Warfield,  42  Md.,  23,  39 ;  1  Gr. 
Ev.,  §§  76,  469a;  Tay.  Ev.,  §  388;  Bradford  v.  Free- 
man, 5  Ex.  E.,  734. 


CHAPTER  III. 

COMPETENCY  OF  WITNESSES. 

§92.  All  witnesses  presumed  competent 
unless  objected  to— When  objection  must  be 
made. — Having  determined  by  which  side  and 
in  what  order  the  testimony  is  to  be  produced, 
the  next  question  to  be  considered  is,  what 
persons  are  competent  to  testify.  The  rule 
upon  this  subject  is  that  all  persons  offered 
as  witnesses  are  presumed  to  be  competent 
until  the  contrary  is  affirmatively  shown  to 
the  satisfaction  of  the  presiding  judge  or 
judges,  by  whom  all  questions  of  competency 
are  to  be  determined,  and  who,  for  the  pur- 
pose, may  examine  the  witness  himself,  or 
hear  any  other  legal  testimony  which  may  be 
produced  upon  the  subject.^  Objection  to 
the  competency  of  a  witness  should  be  made 
before  his  examination  in  chief,  if  the  dis- 
qualification be  then  known  to  the  party  ob- 
jecting, or,  if  it  be  not  then  known,  it  must 

^  Best  Ev.,  §  133;  Ste.  Dig.,  art.  106;  1  Whar.  Ev., 
§§  391,  392.    2  EUiott  Ev.,  §  720. 
244 


CHAP.  Ill]  COMPETENCY  OF  WITNESS  245 

be  made  as  soon  as  the  disqualification  ap- 
pears; for  a  party  who,  knowing  of  objec- 
tions to  the  competency  of  a  witness,  holds 
them  back  until  after  the  witness  has  been  ex- 
amined, will  ordinarily  be  held  to  have  waived 
such  objection.^ 

§  93.  What  rendered  a  witness  incompetent 
at  common  law— Want  of  mental  capacity- 
Want  of  religious  belief— Interest— Being 
husband  or  wife  of  party.— At  common  law  a 
witness  was  totally  disqualified  from  testify- 
ing by  reason  of  any  of  the  following  dis- 
abilities, viz. : 

(a)  Want  of  mental  capacity  to  recollect 
the  matter  on  which  he  was  to  testify,  or  to 
understand  the  questions  put  to  him,  or  to 
give  rational  answers  to  them,  or  to  know  that 
he  ought  to  speak  the  truth.  Such  mental  in- 
capacity may  arise  from  extreme  youth, 
disease  of  any  kind,  intoxication,  or  any  other 
cause  whatsoever.^ 

2  Tay.  Ev.,  §  1392 ;  1  Whar.  Ev.,  §  393 ;  Groshon 
V.  Thomas,  20  Md.,  248. 

3Ste.  Dig.,  art.  107;  1  Gr.  Ev.,  §§365-7;  Tay. 
Ev.,  §§  1375-8;  State  v.  Whittier,  21  Me.,  341,  347; 
38  Am.  D.,  272 ;  McGuire  v.  People,  44  Mich.,  286 ; 
6  K  W.,  669;  37  Am.  E.,  265;  Freeny  v.  Freeny,  80 
Md.,  406;  31  A.,  304;  Wheeler  v.  United  States,  159 


246  PBODUCTION  or  evidence  [part   III 

(b)  "Want  of  belief  in  the  existence  of  a 
God  who  dispenses  retribution  either  in  this 
world  or  the  next ;  for  without  such  belief  the 
solemnity  of  an  oath  could  evoke  no  religious 
sense  of  accountability  whatever.  Vfant  of 
religious  belief  is  never  presumed,  but  must 
be  proved  affirmatively  by  the  party  alleging 
it ;  the  ordinary  method  being  evidence  of  the 
declarations  of  the  witness  previously  made 
to  others.^  According  to  the  weight  of  mod- 
ern authorities,  it  is  not  allowable  to  question 
a  witness  as  to  his  religious  belief  for  the  pur- 
pose of  showing  him  to  be  incompetent ;  ^ 
but  it  does  not  seem  to  have  been  decided 
whether  he  can  be  interrogated  as  to  his  re- 
ligious belief  for  the  purpose  of  contradicting 
the  testimony  of  third  persons,  alleging  him 
to   be  incompetent  because   of   such  belief. 

U.  S.,  523 ;  District  of  Columbia  v.  Armes,  107  U.  S., 
519.  As  to  competency  of  young  children  as  wit- 
nesses, see  State  v.  Meyer,  135  Iowa,  507;  43  N.  W., 
322,  and  extended  note  to  same  case  in  124  Am.  St. 
R.,  291. 

4  1  Gr.  Ev.,  §§  368-70;  Tay.  Ev.,  §  1385;  Omich- 
und  V.  Barker,  1  Sm.  Lea.  Cas.  (7th  Am.  ed.),  *535, 
*545;  Curtis  v.  Strong,  4  Day,  51;  4  Am.  D.,  179. 

s  1  Gr.  Ev.,  §  370  and  note ;  1  Whar.  Ev.,  §  396. 
Contra,  Tay.  Ev.,  §  1385 ;  Amd  v.  Ameling,  53  Md., 
192. 


CHAP.  Ill]  RELIGIOUS   BELIEF  247 

This  rule  has  been  modified  by  statute  or  con- 
stitutional provisions  in  several  of  the  United 
States.® 

^  1  Whar.  Ev.,  §  395.  Although  as  the  law  now 
stands  in  those  states  where  it  has  not  been  changed 
by  legislation,  want  of  religious  belief  operates  as  a 
positive  disqualification  to  the  extent  stated  in  the 
text,  it  is  not  by  any  means  in  a  satisfactory  state 
upon  this  point.  While,  on  the  one  hand,  there  is 
no  doubt  but  that  the  rule  requiring  all  testimony 
in  judicial  proceedings  to  be  given  under  the  sanction 
of  an  oath  gives,  in  the  great  majority  of  cases,  a 
very  important  security  for  its  truthfulness,  for  the 
reason,  as  has  been  said,  that  the  generality  of  man- 
kind are  "neither  so  virtuous  as  to  be  safely  trusted 
in  cases  of  importance  upon  their  bare  word,  nor  yet 
so  abandoned  as  to  violate  a  more  solemn  engage- 
ment," and  while  it  is  also  undeniable  that  a  man 
who  recognizes  himself  to  be  under  no  moral  ac- 
countability to  a  superior  being  is  altogether  lacking 
in  the  strongest  motive  for  veracity,  yet  it  would  be 
going  altogether  too  far  to  say  that  the  testimony  of 
such  a  person  must  necessarily  be  so  entirely  untrust- 
worthy as  to  justify  its  being  altogether  excluded 
from  consideration  in  judicial  proceedings.  Such  a 
view  is  directly  at  variance  with  the  whole  tendency 
of  modern  legislation,  both  in  this  country  and  in 
England,  upon  the  subject  of  evidence,  which  is  to- 
wards removing  the  common  law  restrictions  upon 
the  competency  of  witnesses,  such  as  having  an  in- 


248  PRODUCTION  OF  EVIDENCE  [PART   III 

(c)  Conviction  of  any  crime  rendering  him 
infamous,  viz. :  treason,  felony  or  the  crimen 
falsi,''  which  incapacitates  the  witness  from 

terest  in  the  result  of  the  trial,  or  having  been  pre- 
viously convicted  of  an  infamous  crime,  but  allowing 
the  fact  which  formerly  formed  the  ground  of  such 
disqualification  to  be  given  in  evidence  to  affect  the 
witness's  credibility.  Upon  this  principle,  the  true 
rule  would  seem  to  be,  that  want  of  religious  belief 
on  the  part  of  a  witness  should  not  exclude  his  testi- 
mony, but  ought  always  to  be  allowed  to  be  given  in 
evidence  to  affect  its  credibility,  and  for  this  purpose 
it  should  be  permitted  to  cross-examine  witnesses 
upon  the  point.  Propriety  obviously  requires  that 
an  oath  should  not  be  administered  to  a  person  in- 
sensible to  its  obligations,  for  in  such  a  case  the 
repetition  of  the  words  would  be  a  blasphemous 
mockery;  and  therefore  atheists  should  be  required, 
as  in  England  under  the  statute  32  and  33  Vic,  c. 
68,  §  4,  to  testify  upon  a  solemn  promise  and  declara- 
tion which  would  render  them  liable  to  indictment 
for  perjury  in  case  of  wilfully  and  corruptly  giving 
false  evidence. 

"^  The  crimen  falsi,  as  defined  by  Prof.  Greenleaf 
(1  Gr,  Ev.,  §  373),  is  an  offense  which  "not  only  in- 
volves the  charge  of  falsehood,  but  also  is  one  which 
may  injuriously  affect  the  administration  of  justice 
by  the  introduction  of  falsehood  and  fraud."  It 
has  been  held  to  include  forgery,  perjury,  suborna- 
tion of  perjury,  suppression  of  testimony  by  brib- 


CHAP.  Ill]  CONVICTION    OF   CRIME  249 

testifying  in  the  courts  of  the  state  or  country 
in  which  he  was  convicted  until  the  disability 
has  been  removed  by  a  reversal  of  the  judg- 
ment or  a  pardon.^  In  most  of  the  states  the 
disqualification  of  infamy  has  been  removed 
by  constitutional  provisions  or  by  statute, 
but  a  conviction  may  be  proved  for  the  pur- 
pose of  affecting  the  credibility  of  the  wit- 
ness.^ 

(d)  Being  a  party  to  the  record,  or  having 
any  direct  pecuniary  interest  in  the  result  of 
the  suit.**^     This  disqualification  was  almost 

ery,  or  conspiracy  to  procure  the  absence  of  a  wit- 
ness, or  other  conspiracy  to  accuse  one  of  a  crime, 
and  barratry.    Ihid. 

8  1  Gr.  Ev.,  §§372-378;  State  v.  Grant,  79  Mo., 
113;  49  Am.  R.,  218;  Gertz  v.  Fitchburg  R.  R.  Co., 
137  Mass.,  77;  50  Am.  R.,  285.     ' 

»  1  Whar.  Ev.,  §  397. 

10  1  Gr.  Ev.,  §§  329,  386  et  seq.  To  this  rule  ex- 
eluding  the  testimony  of  the  parties  to  the  suit  there 
"were  always  a  few  exceptions,  as  in  cases  where,  it 
having  been  first  established  by  other  testimony  that 
the  defendant  had  been  guilty  of  some  fraud  or 
other  tortious  and  unwarrantable  act  of  intermed- 
dling with  the  plaintiff's  property,  the  latter  was  the 
only  person  who  could  prove  the  amount  of  dam- 
ages, he  was  allowed  to  testify  for  that  purpose  only ; 
and  also  in  other  cases  where,  upon  grounds  of  public 


250  PEODUCTION  OF   EVIDENCE  [PART   III 

entirely  abolished  in  the  courts  of  the  United 
States  by  section  858  of  the  Revised  Statutes, 
passed  July  2,  1864,  amended  March  3,  1865, 
providing  that  in  those  courts  no  witnesses 
shall  he  excluded  "in  any  civil  action  because 
he  is  a  party  to  or  interested  in  the  issue 
tried;  provided,  that  in  actions  by  or  against 
executors,  administrators  or  guardians,  in 

policy,  his  testimony  was  deemed  essential  to  the 
purposes  of  justice,  as  to  prove  that  he  had  made 
diligent  search  for  a  lost  paper  in  order  to  lay  a 
foundation  for  the  admission  of  secondar}'  evidence 
of  its  contents.  See  1  Gr.  Ev.,  §  348  et  seq.  So 
also,  in  equity  the  answer  of  the  defendant,  so  far 
as  it  was  strictly  responsive  to  the  bill,  was  admitted 
in  evidence  in  his  favor  as  well  as  against  him.  1  Gr. 
Ev.,  §  351.  And  where  a  party  was  required  to 
render  an  account  of  matters  of  long  standing,  the 
court  would  sometimes  exercise  its  discretion  in  per- 
mitting him  to  discharge  himself  by  his  own  testi- 
mony of  some  of  the  items  the  vouchers  for  which 
had  been  lost.  2  Dan.  Ch.  Pr.,  *1230.  See,  also, 
Paige  V.  Whedden,  59  N.  H.,  507,  511.  These  ex- 
ceptions are  of  very  little  practical  importance  at  the 
present  time,  as  it  would  be  almost  impossible  to  find 
a  case  where  the  party  enabled  to  testify  under  them 
has  not  been  rendered  competent  to  testify  at  least 
to  the  same  extent,  and  probably  to  a  much  greater 
extent,  by  the  statutes  abolishing  the  old  rule  of 
exclusion. 


CHAP.  Ill]  PARTIES  TO  RECORD  251 

which  judgments  may  be  rendered  for  or 
against  them,  neither  party  shall  he  allowed 
to  testify  against  the  other  as  to  any  transac- 
tion tvith  or  statement  by  the  testator,  intes- 
tate or  ward,  unless  called  to  testify  thereto 
by  the  opposite  patry,  or  required  to  testify 
thereto  by  the  court."  The  result  of 
this  statute  was  to  cut  up  by  the  roots 
all  disqualification  on  account  of  inter- 
est,^ ^  and  in  civil  cases  to  put  the 
parties  (except  those  named  in  the  proviso) 
upon  a  footing  of  equality  with  other 
witnesses,  making  all  admissible  to  tes- 
tify for  themselves  and  compellable  to  testify 
for  the  others.^  ^  Statutes  to  the  same  gen- 
eral effect,  although  differing  somewhat  in 
their  terms,  have  been  passed  in  all  the  States 
of  the  Union  and  the  Territories,  and  in  many 
of  them  the  accused,  in  criminal  cases,  is  made 
a  competent  witness  in  his  own  behalf,  but  is 
not  compellable  to  testify.^  ^  But  by  the  act 
of  June  29,  1906,  this  section  858  was 
amended  as  follows:  *'Sec.  858.     The  com- 

11  Lucas  V.  Brooks,  18  Wall.,  436,  453. 

^2  Texas  v.  Chiles,  21  Wall.,  488. 

13  So  also  in  Federal  Courts,  see  20  U.  S.  Stats., 
30;  Eev.  Stats.  U.  S.,  §  858  A  (Act  March  16,  1878, 
ch.  37). 


252  PRODUCTION   or   evidence  [part   III 

petency  of  a  witness  to  testify  in  any  civil 
action,  suit  or  proceeding  in  the  courts  of  the 
United  States  shall  be  determined  by  the  laws 
of  the  State  or  Territory  in  which  the  Court 
is  held. ' '  Inasmuch,  however^  as  all  the  States 
and  Territories  had  in  the  meantime  abol- 
ished nearly  all  the  disqualification  from  tes- 
tifying in  civil  cases  upon  the  ground  of 
interest  in  or  being  a  party  to  the  contro- 
vers3%  this  amendment  made  practically  but 
little  difference  in  the  law  as  then  existing, 
(e)  Being  the  husband  or  wife  of  a  party 
to  the  record,  excepting  that  in  criminal  pro- 
ceedings instituted  against  a  person  for  any 
bodily  injury  or  violence  inflicted  upon  his 
wife  or  her  husband,  such  wife  or  husband 
is  competent  to  testify.^  ^  This  exclusion  of 
husband  and  wife  from  testifying  for  or 
against  each  other  has  been  held  to  be  partly 
founded  upon  reasons  of  social  policy,  and 
therefore  those  statutes  which  abolish  the 
disqualification  arising  from  interest  do  not 
always  remove  the  common-law  incompetency 
of  husbands  and  wives  to  testify  for  or 
against  each  other.^^     The  exception  to  the 

14  Ste.  Dig.,  art.  108;  1  Gr.  Ev.,  §  343;  Tay,  Ev., 
§  1371 ;  1  Whar.  Ev.,  §  422 ;  2  Elliott  Ev.,  §  733. 
18  Lucas  V.  Brooks,  18  Wall.,  436,  452;  Stickney 


CHAP.  Ill]  HUSBAND  OR  WIFE  253 

rule  above  stated  is  made  upon  the  ground  of 
necessity,  for  otherwise  it  would  be  ordinarily 
practically  impossible  to  secure  convictions  in 
such  cases.^^  In  many  of  the  states,  however, 
the  incompetency  of  husbands  and  wives  to 
testify  for  or  against  each  other  has  been  to 
a  greater  or  less  degree  removed  by  statute ; 
and  although  these  statutes  vary  in  their  pro- 
visions, the  general  tendency  of  such  legisla- 
tion is  to  put  them  upon  the  same  footing  with 
other  witnesses  in  civil  cases  (excepting  as 
to  confidential  communications  to  each 
other),  and  in  criminal  cases  to  make  them 
competent,  but  not  compellable  to  testify  for 
or  against  each  other. 

§  93.  Witnesses  forbidden  to  testify  as  to 
certain  matters  and  privileged  as  to  others.— 
In  addition  to  the  general  disqualifications 
above  enumerated,  witnesses  are  for  reasons 
of  public  policy,  forbidden  by  law  to  tes- 
tify 0S  to  certain  matters  affecting  other 
persons  towards  whom  they  stand  in  special 
relations,  or  affecting  the  public  administra- 

V.  Stickney,  131  U.  S.,  227,  236;  Gee  v.  Scott,  48 
Texas,  510,  526;  26  Am.  R.,  331;  Spitz's  Appeal,  56 
Conn.,  184;  14  A.,  76;  8  Am.  St.  R.,  303;  1  Gr. 
Ev.,  §  334;  1  Starkie,  Ev.,  *142;  1  Wliar.  Ev.,  §  430. 
i«  1  Gr.  Ev.,  §  343. 


254  PRODUCTION  OF   EVIDENCE  [PART   III 

tion  of  justice;  and  they  are  also  privileged 
to  decline  answering  certain  questions,  the  an- 
swers to  which  might  be  injurious  to  the  pub- 
lic or  to  the  witness  himself.  These  matters 
will  now  be  considered  separately. 

§  94.  Confidential  communications  between 
husband  and  wife.— No  husband  is  permitted 
to  disclose  any  confidential  communication 
made  to  him  by  his  wife,  nor  is  any  wife  per- 
mitted to  disclose  any  confidential  commu- 
nication made  to  her  by  her  husband,  during 
the  marriage.  This  prohibition  having  been 
made  for  the  purpose  of  preserving  intact 
the  confidence  and  security  of  the  marriage 
state,  is  not  removed  by  the  death  of  one  of 
the  parties  or  by  a  dissolution  of  the  mar- 
riage. It  is  personal  to  the  parties,  and  does 
not  extend  to  communications  made  in  the 
presence  or  hearing  of  third  persons  capable 
of  understanding  them.^^ 

§  95.  Judges  may  not  be  examined  as  to 
certain  matters.— A  judge  may  not  be  sworn 

^^  1  Gr.  Ev.,  §§  254,  336-338;  1  Whar.  Ev.,  §  427; 
Allison  V.  Barrow,  3  Cold.,  414;  91  Am.  R.,  291; 
Dickerman  v.  Graves,  6  Gush.,  308;  53  Am.  D.,  41; 
Com.  V.  Sapp,  90  Ky.,  580;  14  S.  W.,  834;  29  Am 
St.  R.,  405;  Hopkins  v.  Grimshaw,  165  U.  S.,  342, 
347;  1  Elliott  Ev.,  §§  628-632. 


CHAP.  Ill]  JUDGES  255 

as  a  witness  in  any  case  while  presiding  at  tlie 
trial,  for  in  such  a  case  he  could  hardly  be 
deemed  capable  of  impartially  deciding  on 
the  admissibility  of  his  own  testimony,  or  of 
weighing  it  against  that  of  other  witnesses.^* 
Where  there  are  several  judges  sitting  to- 
gether, any  one  or  more  of  them  may  be 
sworn  and  testify  as  witnesses ;  but  as  soon 
as  they  become  witnesses  they  should  leave 
the  bench  and  take  no  further  judicial  part 
in  the  trial.^^  Neither  may  judges  or  justices 
of  the  peace  be  asked  to  disclose  anything 
that  took  place  at  their  consultations,  for  the 
law  holds  these  to  be  inviolable  upon  grounds 
of  public  policy;  but  they  may  be  examined 
as  to  foreign  and  collateral  matters  which 
happened  in  their  presence  while  the  trial 
was  pending  or  after  it  was  ended,^°  and  also 
as  to  anything  which  took  place  before  them 
at  a  trial,  not  forming  part  of  the  record,  and 

18  1  Gr.  Ev.,  §  364 ;  Tay.  Ev.,  §  1379 ;  1  Whar. 
Ev.,  §  600 ;  People  v.  Miller,'  3  Park.  C.  E.,  197, 
200;  Morss  v.  Morss,  11  Barb.,  510;  Rogers  v.  State, 
60  Ark.,  76;  29  S.  W.,  894;  48  Am.  St.  R.,  154;  31 
L.  R.  A.,  465. 

19  1  Gr.  Ev.,  §  364;  Tay.  Ev.,  §  1379;  People  v. 
Dohring,  59  N.  Y.,  374;  17  Am.  R.,  349. 

20  1  Gr.  Ev.,  §  364 ;  Tay.  Ev.,  §  859 ;  1  Whar.  Ev., 
§  600 ;  1  Elliott  Ev.,  §  643. 


256  PRODUcTiox  or  evidence        [part  hi 

which  may  be  necessary  in  order  to  identify 
the  case  or  prove  the  testimony  of  a  witness.^^ 
§  96.  Grand  and  petit  jurors  may  not  be 
examined  as  to  their  consultations.— For  the 
same  reason  that  the  consultations  of  judges 
are  held  inviolable,  petit  jurors  may  not  give 
evidence  of  what  passed  between  them  in  the 
discharge  of  their  duties ;  ^-  but  they  are  com- 
petent to  testify  as  to  the  issues  actually 
passed  on  by  the  jury  of  which  they  were 
members,  when  such  question  is  material  on  a 
subsequent  trial.^^  There  has  been  some  con- 
flict of  opinion  as  to  how  far  this  rule  of  in- 
violability extends  to  the  proceedings  of 
grand  jurors ;  but  it  appears  to  be  now  gen- 
erally held  in  this  country,  that  while  a  grand 

21  1  Whar.  Ev.,  §  600;  1  Gr.  Ev.,  §  364;  Tay.  Ev., 
§938;  Heyward's  Case,  1  Sandf.,  731,  734;  Jack- 
son V.  Humphrey,  1  Johns.,  498 ;  Welcome  v.  Batche- 
lor,  23  Me.,  85,  88. 

22  1  Whar.  Ev.,  §601;  1  Gr.  Ev.,  §252a;  Tay. 
Ev.,  §  945;  Cluggage  v.  Swan,  4  Binn.,  150,  155;  5 
Am.  D.,  153;  Studley  v.  Hall,  22  Me.,  198,  201; 
Hannum  v.  Belchertown,  19  Pick.,  311,  313. 

23  1  WHiar.  Ev.,  §  601 ;  Piatt  v.  Sinclair,  6  Ohio, 
227,  234;  Follansbee  v.  Walker,  74  Pa.  St.,  306,  310; 
Stapleton  v.  King,  40  Iowa,  278,  284.  But  see 
Packet  Co.  v.  Sickles,  5  Wall.,  580,  593;  Hewitt  v. 
Chapman,  49  Mich.,  4;  12  N.  W.,  888. 


CHAP.  Ill]  GRAND  OR   PETIT  JUROB  257 

juror  may  not  give  evidence  to  impeach  the 
finding  of  his  fellows,  or  even  to  show  what 
was  the  vote  of  the  findings,  he  can  be  re- 
quired to  give  evidence  as  to  what  was  the 
issue  before  the  grand  jury,  or  what  was  the 
testimony  of  particular  witnesses,  whenever 
such  matters  are  material;  and  also  as  to 
whether  twelve  of  them  actually  concurred 
in  the  finding  of  a  bill.^"*  A  petit  juror  may 
be  sworn  and  examined  as  a  witness  in  a  case 
which  he  has  been  impaneled  to  try,  and  under 
such  circumstances  he  need  not  leave  the  box 
or  decline  to  interfere  with  the  verdict,  for 
he  does  not  decide  upon  the  admissibility  of 
his  own  testimony,  and  there  are  eleven 
others  besides  himself  to  weigh  its  credibil- 
ity.2» 

24  1  Whar.  Ev.,  §  601 ;  1  Gr.  Ev.,  §  252 ;  Tay.  Ev., 
§§942,  943;  Ste.  Dig.,  art.  114;  Izer  v.  State,  77 
Md.,  10;  26  A.,  283;  Low's  Case,  4  Me.,  439;  16 
Am.  D.,  271 ;  People  v.  Hurlbut,  4  Denio,  133,  135 ; 
47  Am.  D.,  244;  Com.  v.  Green,  126  Pa.  St.,  531; 
17  A.,  878;  12  Am.  St.  R.,  915;  United  States  v. 
Charles,  2  Cr.  C.  C,  76;  25  Fed.  Cas.,  p.  409. 

25  Tay.  Ev.,  §  1379;  Best  Ev.,  §  187;  1  Wliar.  Ev., 
§  602;  E.  v.  Rosser,  7  C.  &  P.,  648;  Manly  v.  Shaw, 
C.  &  Marsh.  361 ;  State  v.  Powell,  2  Halstead,  244 ; 
HowBer  v.  Com.,  51  Pa.  St.,  332;  Ottawa  Gaslight 
Co.  V.  Graham,  28  111.,  73;  81  Am.  D.,  263. 

17 


258  PRODUCTION  OF   EVIDENCE  [PART   III 

§  97.  Communications  made  to  public  offi- 
cers or  grand  jurors,  Vvdth  a  view  to  criminal 
prosecutions,  may  not  be  disclosed.— So,  also 
upon  grounds  of  public  policy,  all  communica- 
tions made  to  public  officers  and  to  grand  ju- 
rors, with  a  view  to  the  prosecution  or  detec- 
tion of  suspected  offenders,  are  privileged, 
and  no  witness  is  permitted  to  divulge  any 
such  communication,  or  the  name  of  the  per- 
son who  made  them,  without  the  consent  of 
such  person.^^ 

§  98.  State  secrets  may  not  be  disclosed.— 
No  witness  will  be  permitted  to  be  examined 
relating  to  any  state  secret,  or  to  communica- 
tions with  public  officers  about  matters  per- 
taining to  their  official  duties,  in  so  far  as 
such  examination  would,  in  the  opinion  of  the 
court,  make  disclosures  injurious  to  the  public 
interests.  And  in  all  cases  where  the  law  is 
restrained  by  public  policy  from  enforcing 
the  production  of  papers,  no  secondary  evi- 

28  1  Gr.  Ev.,  §250;  Tay.  Ev.,  §§939-43;  Ste. 
Dig.,  art.  113;  1  Whar.  Ev.,  §§603,  604;  Ohver  v. 
Pate,  41  Ind.,  132,  141;  Worthington  v.  Scribner, 
109  Mass.,  487,  488 ;  12  Am.  E.,  736 ;  United  States  v, 
Moses,  4  Wash.  C.  C,  726 ;  27  Fed.  Cas.,  p.  5 ;  In  re 
Quarles,  158  U.  S.,  532,  536;  1  Elhott  Ev.,  §  630. 


CHAP.  Ill]    PARTIES  TO  NEGOTIABLE   PAPER  259 

dence  of  the  contents  of  such  papers  may  be 
given.^^ 

§  99.  Parties  to  neg-otiable  instruments  in- 
competent to  impeach  them.— In  the  courts  of 
the  United  States,  and  of  several  of  the  states 
of  the  Union,  it  has  been  held  that  parties  to 
a  negotiable  instrument  who  have  given  it 
credit  and  currency  by  their  signatures  are 
not  afterwards  competent  witnesses,  even  in 
suits  between  other  persons,  to  impeach  its 
validity;  but  in  other  states  such  parties  are 
held  competent  to  testify  in  suits  between 
other  persons,  where  their  evidence  cannot 
be  excluded  upon  the  ground  of  estoppel.^^ 


27  Ste.  Dig.,  art.  112 ;  1  Gr.  Ev.,  §  251 ;  1  Whar.  Ev., 
604.  See,  also,  §  103,  post;  Totten  v.  United  States, 
92  U.  S.,  105;  Marbury  v.  Madison,  1  Cr.,  137;  144; 
Worthington  v.  Scribner,  109  Mass.,  487. 

28  Mr.  Justice  Miller,  in  Sweeny  v.  Easter,  1  Wall., 
p.  173,  says :  "Perhaps  no  subject  connected  with  com- 
mercial paper  has  been  more  the  subject  of  contro- 
versy, and  of  opposing  and  well-balanced  judicial  de- 
cisions, tlian  the  proposition  here  relied  on.  It  was 
first  laid  down  in  the  English  case  of  Walton  v.  Shelley 
(1  Term  E.,  296),  and  afterwards  held  the  other  way 
in  Jordaine  v.  Lashbrook  (7  Id.,  601).  This  court 
has  steadily  adhered  to  the  doctrine  of  Walton  v. 
Shelley,  and  we  are  referred  by  counsel  for  plaintiff  in 
error  to  our  own  decisions  on  the  subject  in  6  Peters, 


260  PRODUCTION  OF   EVIDENCE  [PART    III 

§  100.  Communication  to  legal  adviser  may 
not  be  disclosed  by  him.— Upon  principles  of 
public  policy,  no  lawyer  is  permitted,  unless 
with  his  client's  express  consent,  to  testify 
as  to  any  communication,  oral  or  document- 
ary, made  to  him  by  or  on  behalf  of  his  client 
during  the  course  and  for  the  purpose  of  his 
employment  ;^^  for  otherwise  no  man  would 
dare  to  consult  a  professional  adviser  with  a 
view  to  his  defense  or  to  the  enforcement  of 

51;  8  Peters,  12;  3  Howard,  73;  13  Howard,  229." 
The  courts  in  the  following  states,  viz.,  Maine,  Massa- 
chusetts, Pennsylvania,  Mississippi,  Louisiana,  Ohio, 
Illinois,  Iowa,  and  Tennessee,  have  also  adopted  the 
rule  in  Walton  v.  Shelley,  which,  however,  is  rejected 
in  the  states  of  Vermont,  New  Hampshire,  Connecti- 
cut, New  York,  New  Jersey,  Maryland,  Virginia, 
North  Carolina,  South  Carolina,  Georgia,  Alabama, 
Michigan,  Kentucky,  and  Missouri.  The  best  collec- 
tion of  the  cases  on  the  point  will  be  found  in  22 
Am.  Rep.,  p.  93,  in  a  note  to  Dewey  v.  Merriam,  71 
111.,  198.  Most  of  these  are  also  given  in  the  note  to 
§  385  of  1  Greenleaf  on  Evidence.  See  2  Elliott  Ev., 
§  739. 

29  Ste.  Dig.,  art.  115;  1  Gr.  Ev.,  §§  237-242;  Tay. 
Ev.,  §§  911-915;  1  Whar.  Ev.,  §§  576-581;  Chirac  v. 
Eeinecker,  11  Wheat.,  280,  294;  McLellan  v.  Long- 
fellow, 32  Me.,  494;  54  Am.  D.,  599  ;  Bacon  v.  Frisbie, 
80  N.  Y.,  394;  36  Am.  Tf..  627;  Snow  v.  Gould,  74 
Me.,  54;  43  Am.  R.,  604;  1  Elliott  Ev.,  §  623. 


CHAP.  Ill]     PRIVILEGED  COMMUNICATIONS  261 

his  rights,  and  no  man  could  safely  come  into 
court  either  to  obtain  redress  or  to  defend 
himself.^''  This  rule  being  restricted  to  in- 
formation given  in  the  course  and  for  the  pur- 
pose of  professional  employment,  does  not 
apply  to  any  fact  which  a  legal  adviser  be- 
came acquainted  with  otherwise  than  in  his 
character  as  such;^!  jjqj.  ^q  g^j^y  communica- 
tion made  to  him  in  furtherance  of  any  crim 
inal  purpose,^^  or  to  any  fact  observed  by  him 
in  the  course  of  his  employment,  showing  that 
any  crime  or  fraud  has  been  committed  since 
the  commencement  of  his  employment ;  for  it 
is  no  part  of  a  law^^er's  duty  to  be  an  acces- 
sory to  his  client's  crime  or  a  participant  in 
his  fraud. ^^  This  rule  is  restricted  to  com- 
munications made  to   counsel,   solicitors  or 

30  1  Gr.  Ev.,  §  238;  Tay.  Ev.,  §  914;  Greenough  v. 
Gaskell,  Myl.  &  K.,  103 ;  1  Elliott  Ev.,  §  624. 

31  Ste.  Dig.,  art.  115;  1  Gr.  Ev.,  §  244;  Tay.  Ev., 
§930;  Chirac  v.  Reinecker,  11  Wheat.,  280,  284; 
Crosby  v.  Berger,  11  Paige,  377;  42  Am.  D.,  117; 
Coveney  v.  Tannahill,  1  Hill,  35 ;  37  Am.  D.,  289. 

32  Ste.  Dig.,  art.  115;  Tay.  Ev.,  §  931 ;  Eeg.  v.  Cox, 
L.  R.,  14  Q.  B.  D.,  164,  per  Stephen,  J. ;  Alexander  v. 
United  States,  138  U.  S.,  353,  357;  People  v.  Blakely, 
4  Park.  C.  R.,  176,  180;  Bank  of  Utica  v.  Mersereaii, 
4  Barb.  Chy.,  528,  598;  49  Am.  D.,  189,  230. 

33  Ste.  Dig.,  art.  115;  1  Gr.  Ev.,  §  242;  Tay.  Ev., 


262  PRODUCTION  OF  EVIDENCE  [PART   III 

attorneys  who  are  acting  for  the  time  being  in 
the  character  of  legal  advisers,  and  to  such 
other  persons  as  are  the  necessary  organs  of 
communication  between  them  and  their 
clients,  such  as  their  clerks  and  interpret- 
ers.^'* It  does  not,  at  common  law,  apply  to 
communications  made  to  clerg^mien  or  med- 
ical men  in  their  professional  capacity;^' 
but  in  some  of  the  United  States  such  com- 
munications are  privileged  by  statute. 

§  101.  Privilege  of  client  as  to  disclosing 
communication  made  to  legal  adviser.— Be- 
sides these  matters  as  to  which  certain  wit- 
nesses are  forbidden  to  testify,  there  are 
others  which  they  are  privileged  to  refuse  to 
be  interrogated  about,  if  they  choose  to  avail 

§  930,  note ;  1  Whar.  Ev.,  §  590 ;  Follette  v.  Jeffereyes, 
1  Sim.  (N.  S.),  3,  17. 

34  Ste.  Dig.,  art.  115;  1  Gr.  Ev.,  §  239;  Tay.  Ev., 
§  920 ;  1  Whar.  Ev.,  §  582 ;  Jackson  v.  French,  3 
Wend.,  337,  339 ;  20  Am.  D.,  697 ;  Sibley  v.  Waffer, 
16  N.  Y.,  180,  183.  As  to  conveyancers,  see  De  Wolf 
V.  Strader,  26  111.,  255 ;  79  Am.  D.,  371 ;  Hatton  v. 
Robinson,  14  Pick.,  416;  25  Am.  D.,  415;  Hubbard  v. 
Houghton,  70  N.  Y.,  54.  But  see  Crane  v.  Barkdoll, 
59  Md.,  534,  538 ;  1  Elliott  Ev.,  §  625. 

35  Ste.  Dig.,  art.  117;  1  Gr.  Ev.,  §  247;  Tay.  Ev., 
§  916;  1  Whar.  Ev.,  §§  596,  606;  Com.  v.  Drake,  15 
Mass.,  161 ;  Simon  v.  Gratz,  2  Pa.  E.,  412. 


CHAP.  Ill]     TRIVILEGED  COMMUNICATIONS  263 

themselves  of  such  privilege,  upon  the  ground 
that  disclosures  in  regard  to  such  matters 
might  be  injurious  to  the  interests  of  the  wit- 
ness or  of  the  public.  Among  these  may  be 
classed  all  communications  made  by  a  client 
to  his  legal  adviser,  which  such  legal  adviser 
would  not  be  allowed  to  disclose  without  the 
client's  permission,  although  they  may  have 
been  made  before  any  dispute  arose  as  to  the 
matter  referred  to.^'' 

§  102.  Privilege  as  to  facts  tending  to 
criminate  witness.— In  accordance  with  the 
common-law  principle  which  has  been  incor- 
porated in  the  federal  constitution,^^  and  also 
made  a  part  of  the  fundamental  law  of  the 
several  states  of  the  Union,  that  no  person 

36  Ste.  Dig.,  art.  116;  1  Gr.  Ev.,  §  239a;  Tay.  Ev., 
§  924 ;  1  Whar.  Ev.,  §  583.  In  Massachusetts  it  has 
been  held  that  when  the  client,  being  a  party  to  the 
cause,  has  testified  as  a  witness  on  his  own  offer,  he 
thereby  waives  the  privilege  and  may  be  compelled  to 
disclose,  on  cross-examination,  any  communications 
made  by  him  to  his  legal  adviser.  Inhabitants  of  Wo- 
burn  V.  Henshaw,  101  Mass.,  193,  200;  3  Am.  K.,  333. 
But  the  contrary  has  been  held  in  other  states.  Hem- 
enway  v.  Smith,  28  Vt.,  700,  707 ;  Bigler  v.  Reyher, 
43  Ind.,  112;  State  v.  White,  19  Kan.,  445;  27  Am. 
R.,  137;  1  Elliott  Ev.,  §§  625,  627. 

37  Const.  U.  S.,  Amend.  V. 


264  PRODUCTION  OF   EVIDENCE  [PART   III 

shall  be  compelled  in  any  criminal  case  to  be 
a  witness  against  himself,  every  witness  is 
privileged  to  decline  answering  any  question, 
if  the  answer  thereto  might,  in  the  opinion 
of  the  judge,  have  a  tendency  to  expose  such 
witness  (or  his  or  her  wife  or  husband)  to  any 
criminal  charge,  or  to  any  penalty  or  forfeit- 
ure, which  the  judge  regards  as  reasonably 
likely  to  be  preferred  or  sued  for;^^  or  to  be 
compelled  to  produce  any  document  which 
would  have  a  like  effect,  but  this  privilege 
does  not  excuse  a  witness  from  answering  any 
question  material  to  the  issue,  merely  because 
the  answer  may  establish  that  he  owes  a  debt, 
or  is  otherwise  liable  to  any  civil  suit,  either 
at  the  instance  of  the  state  or  of  any  other 
person,^^  or  because  the  answer  thereto  may 
have  a  tendency  to  disgrace  or  degrade  him, 
without  rendering  him  liable  to  any  criminal 

38  Ste.  Dig.,  art.  120;  1  Gr.  Ev.,  §  451 ;  Tay.  Ev., 
§§1453,  1454;  1  Whar.  Ev.,  §§533-541;  Counsel- 
man  V.  Hitchcock,  142  U.  S.,  547 ;  Fries  v.  Brugler,  7 
Halst.,  79;  21  Am.  D.,  52;  Chamberlain  v.  Wilson,  12 
Vt.,  491 ;  36  Am.  D.,  356 ;  Calhoun  v.  Thompson,  56 
Ala.,  166;  27  Am.  R.,  754;  Ballman  v.  Fagin,  200 
U.  S.,  186,  195;  2  Elliott  Ev.,  §  1001. 

39  Ste.  Dig.,  art.  120;  Tay.  Ev.,  §1463;  Bull  v. 
Loveland,  10  Pick.,  912 ;  Taney  v.  Kemp.  4  H.  &  J., 
345;  7  Am.  D.,  673;  2  Elliott  Ev.,  §  1009. 


CHAP.  Ill]  INCRIMINATING    FACTS  265 

prosecution.'*'^  This  privilege,  however,  may- 
be waived  by  the  witness  if  he  voluntarily 
testifies  to  any  matter  which  might  expose 
him  to  a  criminal  prosecution;  for  in  such 
case  he  is  bound  to  give  all  the  details  of  the 
transaction,  if  required.  Parties  to  the 
cause  who  testify  on  their  own  offer  are  con- 
sidered as  thereby  waiving  the  privilege  as 
to  the  subject-matter  of  their  testimony  in 
chief,  and  must  submit  to  a  full  cross-exam- 
ination thereon,  however  much  the  answers 
may  tend  to  criminate  them.^^  As  to  how  far 
a  witness  may  be  compelled  to  submit  to  a 
physical  examination  see  Sec,  131  post.  The 
privilege  against  self-incrimination  is  purely 

^M  Gr.  Ev.,  §454;  Tay.  Ev.,  §§1459,  1460;  1 
Whar.  Ev.,  §  543 ;  People  v.  Mather,  4  Wend.,  229, 
250-254;  21  Am.  D.,  122;Lohman  v.  People,  1  N.  Y., 
379 ;  49  Am.  D.,  340 ;  People  v.  Sharp,  107  N.  Y., 
427;  14  K  E.,  319;  1  Am.  St.  P.,  857;  act  Cong., 
1906,  c.  389 :  2  Elliott  Ev.,  §  1005. 

41  1  Gr.  Ev.,  §  451a ;  1  Whar.  Ev.,  §  539 ;  1  Thomp. 
Tr.,  §307;  Spies  v.  Illinois,  123  U.  S.,  131,  180; 
Com.  V.  Nichols,  114  Mass.,  285;  19  Am.  R,  346; 
State  V.  White,  19  Kan.,  45;  27  Am.  R.,  137;  State  v. 
Duncan,  7  Wash.,  336;  35  P.,  117;  38  Am.  St.  R., 
888,  and  note.  Fitzpatrick  v.  United  States,  178  U. 
S.,  304,  5;  Sawyer  v.  United  States,  202  U.  S.,  150, 
165;  2  Elliott  Ev.,  §  1012. 


266  PRODUCTION  OF   EVIDENCE  [PART   III 

personal  to  the  witness,  and  he  cannot  claim 
the  privilege  of  another  person  or  of  the  cor- 
poration of  which  he  is  an  officer."*^ 

§  103.  Privilege  of  government  and  state 
officials  as  to  public  matters.— The  executive 
of  the  nation  or  of  a  state  and  the  heads  of  de- 
partments of  the  government  are  privileged, 
in  the  exercise  of  their  discretion,  to  deter- 
mine how  far  they  will  produce  papers  or  an- 
swer questions  as  to  public  affairs  in  a  ju- 
dicial inquiry;  this  privilege,  however,  is  re- 
stricted to  these  officers  and  cannot  be 
claimed  by  a  subordinate.^^ 

§  104.  Cases  where  corroborative  evidence 
required.— Besides  the  above  cases  in  which 
certain  witnesses  are  either  disqualified  or 
privileged  from  testifying,  there  are  other 
cases  in  which  the  testimony  of  a  witness,  al- 
though admissible,  is  not  sufficient  to  form 
the  basis  of  a  verdict  unless  supported  by 
other  corroborative  evidence.  These  will 
now  be  briefly  considered. 

42  Hale  V.  Henkel,  201  U.  S.,  43,  70;  see  Vol.  5, 
Cent.  Dig.  Witness,  §§  1058-1060. 

43  1  Gr.  Ev.,  §  251;  1  Whar.  Ev.,  §  604;  Totten  v. 
United  States,  92  U.  S.,  105;  Marbury  v.  Madison,  1 
Cr.,  137, 144 ;  Worthington  v.  Sribner,  109  Mass.,  487 ; 
13  Am.  R,  736;  1  Elliott  Ev.,  §  639. 


CHAP.  Ill]         TWO    WITNESSES   REQUIRED  267 

§  105.  Prosecutions  for  treason.— The  first 
case  is  that  of  prosecutions  for  treason,  in 
which  the  testimony  of  two  witnesses  is  al- 
ways required.  The  federal  constitution  pro- 
vides ^^  that  no  person  shall  be  convicted  of 
treason  against  the  United  States  unless  on 
the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court. 
But  a  person  may  be  convicted  of  treason 
against  a  state  (where  there  is  no  express  law 
to  the  contrary)  by  the  testimony  of  two  wit- 
nesses, one  of  them  to  one,  and  another  to 
another,  overt  act  of  the  same  treason,  or  both 
of  them  to  a  voluntary  confession  out  of 
court.^^ 

§  106.  Prosecutions  for  perjury.— If,  upon 
a  trial  for  perjury,  the  only  evidence  against 
the  defendant  is  the  oath  of  one  witness  con- 
tradicting the  oath  on  which  perjury  is  as- 
signed, and  no  circumstances  are  proved 
which  corroborate  such  witness,  the  defendant 
is  entitled  to  be  acquitted,^ ^  for  the  reason 
that  the  oath  of  a  single  witness  is  not  deemed 

44  Const.  U.  S.,  art.  Ill,  §  3. 

«  1  Gr.  Ev.,  §  255 ;  3  id.,  §  246 ;  7  and  8  Will.  Ill, 
c.  3,  §§  2,  4. 

48Ste.  Dig.,  art.  122;  1  Gr.  Ev.,  §257;  United 
States  V.  Wood,  14  Pet.,  430,  440 ;  4  Ell.  Ev.,  §  3089. 


268  PRODUCTION  OP   EVIDENCE  [PART   III 

sufficient  to  counterbalance  the  oath  of  the 
prisoner  and  the  legal  presumption  of  his  in- 
nocence by  which  it  is  supported. 

§  107.  To  contradict  answer  in  equity 
called  for  upon  oath.— So,  also,  the  general 
rule  in  equity  is  that  where  the  complainant, 
by  calling  on  a  defendant  to  answer  under 
oath  an  allegation  which  he  makes,  thereby 
admits  the  answer  to  be  evidence,  and  the  de- 
fendant in  express  terms  negatives  that  al- 
legation, either  the  testimony  of  two  wit- 
nesses, or  of  one  witness  with  corroborative 
circumstances,  will  be  required  to  outweigh 
such  an  answer.  Cases,  however,  sometimes 
occur  when  the  evidence  arising  from  circum- 
stances is  of  itself  strong  enough  for  this 
purpose.^^ 

§  108.  Generally  required  to  establish  gen- 
eral usage  or  proof  of  adultery.— The  testi- 
mony of  more  than  one  witness  is  usually  re- 
quired to  establish  any  usage  of  trade  of 
which  all  dealers  in  that  particular  line  are 
bound  to  take  notice  and  presumed  to  be  in- 
formed.^^     And   courts   will  not   ordinarily 

47  1  Gr.  Ev.,  §  260 ;  Tay.  Ev.,  §  959 ;  Clark's  Ex'r 
V.  Van  Reimsdyk,  9  Cr.,  153,  160;  Tobey  v.  Leonards, 
2  Wall.,  423,  430. 

48  1  Gr.  Ev.,  §  260a  ;  8  Whar.  Ev.,  §  964;  Boardman 


CHAP.  Ill]         CORROBORATION  REQUIRED  269 

grant  divorces  upon  the  evidence  of  the 
parties  alone  without  some  corroborative 
proof,  upon  the  ground  that,  whenever  other 
testimony  can  be  had,  it  is  neither  safe  nor 
fit  to  rely  upon  that  of  the  party  alone.'*^ 
These,  however,  are  only  general  rules  of 
practice,  without  the  binding  authority  of 
law,  and  may  be  departed  from  by  the  courts 
at  any  time  in  their  discretion. 

§  109.  Testimony  of  an  accomplice  should 
generally  be  corroborated  to  warrant  convic- 
tion.—When  the  only  proof  against  a  person 
charged  with  a  criminal  offense  is  the  evi- 
dence of  an  accomplice,  uncorroborated  in 
any  material  particular,  it  is  the  duty  of  the 
judge  to  warn  the  jury  that  it  is  unsafe  to 
convict  any  person  upon  such  evidence, 
though  they  have  a  legal  right  to  do  so ;  but  it 
is  questionable  whether  the  failure  of  the 
judge  to  so  warn  the  jury  is  sufficient  ground 
for  granting  a  new  trial.^*^ 

V.  Spooner,  13  Allen,  359;  Eobinson  v.  United  States, 
13  Wall.,  366. 

49  Eobins  v.  Robins,  100  Mass.,  150;  1  Whar.  Ev., 
§433. 

50  Ste.  Dig.,  art.  121 ;  1  Gr.  Ev.,  §  380 ;  Tay.  Ev., 
§§  967-971;  Cheatham  v.  State,  67  Miss.,  335;  7  So., 
204;  19  Am.  St.  R.,  310  ;  Com.  v.  Price,  10  Gray,  472 ; 
71  Am.  D.,  665.  But  see  Blakely  v.  State,  24  Tex. 
Ap.,  616;  7  S.  W.,.233i.5  Am.  St.  R.,  912. 


CHAPTER  IV. 

EXAMINATION    OF    WITNESSES. 

§110.  All  witnesses  must  be  examined 
upon  oath  or  affirmation.— All  oral  evidence 
must  be  given  upon  oath,  unless  the  witness 
objects  to  being  sworn  from  alleged  con- 
scientious scruples,  in  which  case  he  will  be 
allowed  to  make  a  solemn  religious  affirma- 
tion, involving  a  like  appeal  to  God,  for  the 
truth  of  his  testimony,  in  any  mode  which  he 
shall  declare  to  be  binding  upon  his  con- 
science; and  any  person  who,  having  made 
such  affirmation,  wilfully  and  corruptly  gives 
false  evidence,  is  punishable  as  for  perjurJ^ 
All  witnesses  are  to  be  sworn  according  to  the 
peculiar  ceremonies  of  their  own  religion,  or 
in  such  manner  as  they  may  deem  binding  on 
their  own  consciences;  and  if  the  witness  be 
not  of  the  Christian  religion,  the  court  will 
inquire  as  to  the  form  in  which  an  oath  is  ad- 
ministered in  his  own  country  or  among  those 
of  his  own  faith,  and  will  impose  it  in  that 
form.  In  ascertaining  what  form  of  oath  is 
binding  upon  the  conscience  of  the  witness, 

270 


CHAP.    IV]  ORAL  EVIDENCE  271 

the  court  may  inquire  of  the  witness  himself, 
and  the  proper  time  for  making  this  inquiry 
is  before  he  is  sworn. ^ 

§  111.  How  oral  evidence  may  be  taken.— 
Oral  evidence  must  be  taken  either  in  open 
court,  or  out  of  court  for  future  use  in  court 
under  a  commission  or  by  deposition  before 
some  officer  of  the  court  or  other  person  or 
persons  appointed  for  that  purpose,  either  by 
agreement  of  the  parties  or  under  the  provi- 
sions of  some  statute  or  rule  of  court  govern- 
ing the  tribunal  in  which  said  evidence  is  to 
be  used.  If  taken  under  a  commission,  it 
must  be  done  in  the  manner  prescribed  by 
its  terms,  or  by  the  rules  of  court  or  statute 
regulating  the  mode  of  executing  it;  and  if 
taken  by  deposition,  it  must  be  only  in  the 
manner  and  under  the  circumstances  pre- 
scribed, and  can  be  used  only  for  the  purposes 
and  upon  the  contingencies  expressly  pro- 
vided by  the  terms  of  such  agreement,  statute 
or  rule  of  court.  The  testimony  of  witnesses 
who  are  beyond  the  reach  of  the  process  of 
the  court,  or  who,  from  sickness  or  any  other 

1  1  Gr.  Ev.,  §  371 ;  1  Whar.  Ev.,  §  387;  Omichund 
V.  Barker,  1  Sm.  Lead.  Cas.,  7th  Am.  ed.,  pp.  *535, 
*545 ;  1  Thomp.  Tr.,  §  365 ;  2  Elliott  Ev.,  §  805.       • 


272  PRODUCTION  or   evidence  [part   III 

reason,  are  physically  unable  to  attend  court,^ 
and  (unless  otherwise  provided  by  statute) 
all  testimony  in  chancery  proceedings, ^  may 
be  taken  either  under  a  commission  or  by  dep- 
osition, according  to  the  practice  of  the  court 
before  which  the  case  is  tried.^  All  other  tes- 
timony must  be  given  orally  in  open  court, 
except  in  cases  otherwise  specially  provided 
for  by  statute  or  rule  of  court  or  agreement 
of  parties.  In  civil  cases,  when  witnesses  are 
about  to  leave  the  jurisdiction  of  the  court,  or, 
by  reason  of  feeble  health  or  advanced  age, 
are  not  likely  to  be  alive  and  capable  of  tes- 
tifying at  the  time  of  trial,  their  testimony 
may  be  taken  by  deposition  for  future  use  de 
bene  esse  in  the  event  of  it  being  impossible 
for  them  to  give  their  evidence  in  court  at  the 
hearing;  provided  the  party  taking  such  de- 
positions shall  have  first  given  such  notice 
as  may  be  required  by  statute  or  rule  of  court 
to  the  party  against  whom  such  depositions 
are  to  be  used.^ 

2  1  Gr.  Ev.,  §  321. 

Sid.,  §§251,  259. 

^  Practice  in  Courts  of  United  States ;  Blease  v. 
Garlington,  92  U.  S.,  1 ;  Nelson  v.  United  States,  201 
U.  S.,  92. 

B  1  Gr.  Ev.,  §§  321-325.  See  Rev.  Stats.  U.  S., 
§  863,  etc.;  2  Elliott  Ev.,  §§  1136-1200. 


CHAP.    IV]  OBJECTION    TO    EVIDENCE  273 

§  112.  When  and  how  objections  to  evi- 
dence may  be  made.— When  a  deposition  or 
the  return  of  a  commission  is  used  in  court  as 
evidence,  the  party  against  whom  it  is  read 
may  object  to  the  reading  of  anything  therein, 
on  any  ground  upon  which  he  could  have  ob- 
jected»to  its  being  stated  by  a  witness  exam- 
ined in  opeii  court  ;'^  but  no  one  can  object  to 
the  reading  of  the  answer  of  any  question 
asked  by  his  own  representative,  unless  upon 
the  ground  of  its  being  irresponsive  to  such 
question ;  "^  and  no  question  may  be  objected 
to  for  matter  of  form  merely,  unless  excep- 
tion was  taken  thereto  before  it  was  an- 
swered, in  cases  where  the  party  objecting  or 
his  representative  had  the  opportunity  of  so 
excepting.* 

All  objections  to  the  admissibility  of  oral 
evidence  should  be  made  at  the  time  it  is  of- 
fered, when  apparent,  otherwise  they  must 
be  made  within  a  reasonable  time  after  they 

«  Ste.  Dig.,  art.  125;  Scaggs  v.  B.  &  W.  K.  E.,  10 
Md.,  268,  281. 

7  Mayfield  v.  Kilgour,  31  Md.,  240,  243 ;  Packham 
V.  Glendemeyer,  102  Md.,  416,  424;  63  A.,  1048. 

8  Strickler  v.  Todd,  10  S.  &  E.,  63,  73 ;  13  Am.  D., 
649;  Doane  v.  Glenn,  21  Wall.,  32,  35;  Brown  v. 
Hardcastle,  63  Md.,  484,  494;  1  Thomp.  Tr.,  §  701. 


274  PRODUCTION  OF  EVIDENCE  [PART  111 

are  disclosed  to  the  party  making  them;^ 
for  a  party  who  sits  by  and  allows  his  ad- 
versary to  put  in  evidence  which  he  knows 
to  be  incompetent,  without  objecting  when 
he  has  the  opportunity  to  do  so,  will  ordinar- 
ily be  deemed  to  have  waived  all  objections 
to  it,  and  the  evidence  thus  received  will  be  al- 
lowed to  have  the  same  effect  as  if  admitted 
according  to  the  strict  rules  of  law.^^  Thus 
objection  to  the  competency  of  a  witness 
should  be  made  before  he  is  sworn,  or  at  least 
before  he  has  testified — although  when  the 
opposite  party  does  not  become  aware  of 
the  incompetency  until  the  witness  has  begun 
his  testimony,  objection  may  then  be  made, 

»  Dent  V.  Hancock,  5  Gill,  120, 127  ;  Marsh  v.  Ward, 
35  Md.,  123 ;  Maxwell  v.  Hannibal,  etc.,  R.  R.  Co.,  85 
Mo.,  95,  108;  Gerting  v.  Wells,  103  Md.,  624,  628; 
64  A.,  298,  433. 

10  Farmers'  Bank  v.  Duvall,  7  G.  &  J.,  78,  95;  At- 
well  V.  Grant,  11  Md.,  101,  107;  Deutsch  v.  Bond,  46 
Md.,  164;  Lamb  v.  Taylor,  67  Md.,  93;  8  A.,  760; 
Sentman  v.  Gamble,  69  Md.,  304,  305 ;  13  A.,  58 ;  14 
A.,  673;  Slingluff  v.  Builder's  Supply  Co.,  89  Md., 
557,  562;  43  A.,  759;  Maxwell  v.  Hannibal,  etc.,  R. 
R.  Co.,  85  Mo.,  95,  108 ;  Cleveland,  etc.,  R.  R.  Co.  v. 
Wyant,  134  Ind.,  681;  34  N.  E.,  569;  Winter  v. 
Winter,  102  Iowa,  53;  71  N.  W.,  184;  63  Am.  St. 
R,  428. 


CHAP.   IV]  OBJECTION    TO   EVIDENCE  275 

and  if  sustained  the  testimony  already  given 
will  be  stricken  out.^^  If  a  question  be  put 
which  is  leading  or  otherwise  objectionable  in 
form,  or  which  plainly  calls  for  inadmissible 
testimony  to  be  given  in  answer  thereto,  ob- 
jection should  be  made  to  such  question  be- 
fore it  is  answered.^  2  But  if  the  question 
be  one  which  does  not  necessarily  call  for  in- 
competent testimony,  but  such  testimony  is 
in  fact  given  in  reply  thereto,  objection 
should  be  made  not  to  the  question  but  to 
the  answer  or  such  part  thereof  as  may  be 
incompetent  or  irrelevant  as  soon  as  such  in- 
competency or  irrelevancy  shall  become  ap- 
parent.^ ^  Thus  if  a  witness  be  asked  whether 
there  was  a  contract  between  the  plaintiff  and 
the  defendant  and  what  it  was  and  his  an- 
swer discloses  for  the  first  time  that  the  al- 
ii 1  Gr.  Ev.,  §  421;  1  Whar.  Ev.,  §  393;  Tay.  Ev., 
§  1392;  Hickory  v.  United  States,  151  U.  S.,  303, 
307;  Andre  v.  Bodman,  13  Md.,  241;  71  Am.  D., 
628;  2  Elhott  Ev.,  §  881. 

12  WilHams  v.  Grand  Eapids,  53  Mich.,  271 ;  18  N. 
W.,  811;  Levin  v.  Russell,  42  F.  Y.,  250,  256;  Wig- 
gins V.  Guthrie,  101  N.  C,  661 ;  7  S.  E.,  761. 

13  Gould  V.  Day,  94  U.  S.,  405,  419;  Holms  v, 
Roper,  141  N.  Y.,  64;  36  N.  E.,  180 ;  Denise  v.  Denise, 
110  N.  Y.,  563;  18  N.  E.,  368. 


276  PEODUCTION  OF  EVIDENCE  [PART   III 

leged  contract  was  in  writing,  the  opposing 
counsel  may  at  once  require  the  witness  to 
produce  the  writing  and  if  he  fails  to  do  so, 
or  to  give  a  satisfactory  excuse  for  its  non- 
production,  any  testimony  which  he  may  have 
already  given  as  to  the  terms  of  such  con- 
tract will  be  stricken  out.^^  When  a  question 
calls  for  evidence  that  may  or  may  not  be 
competent,  the  opposing  counsel  has  a  right 
to  interpose  and  cross-examine  the  witness 
upon  facts  material  to  the  competency  of  his 
proposed  answer  ;^^  and  when  a  question 
calls  for  evidence  which  may  or  may  not  be 
relevant  the  party  putting  it  may  be  required 
to  state  beforehand  the  substance  of  what  he 
expects  to  prove  by  the  witness  in  order  that 
its  admissibility  may  be  determined.^ ^  Im- 
proper evidence  admitted  on  one  side  without 
objection  does  not  give  the  other  side  the 
right  to  introduce  in  reply  the  same  kind  of 

1^  Common  practice  at  nisi  prius.  Mt.  Vernon 
Brewing  Co.  v.  Tucker,  108  Md.,  158,  162;  69  A.,  703. 

it^  Maurice  v.  Worden,  54  Md.,  330;  Trussell  v. 
Scarlett,  18  Fed.  Eep.,  217  and  note. 

18  Morgan  v.  Brown,  71  Pa.  St.,  130,  136;  Susque- 
hanna Fertilizer  Co.  v.  Wliite,  G6  Md.,  435 ;  7  A.,  802 ; 
59  Am.  Rep.,  186,  189 ;  Bauernschmidt  v.  Md.  Trust 
Co.,  89  Md.,  507,  570;  43  A.,  790. 


CHAP.  Ill]  EXAMINATION  IN  CHIEF  277 

evidence  if  objected  to;^^  but  the  court  has 
a  discretionary  power  when  one  side  has  so 
given  immaterial  or  irrelevant  evidence  with- 
out objection  to  permit  the  other  side  to  con- 
tradict it.^^  But  whenever  improper  evidence 
has  been  received  against  the  objection  of  the 
opposing  party,  it  is  error  for  the  court  to  re- 
fuse to  allow  the  latter  to  contradict  it/^  yet 
the  court  has  the  right  to  exclude  sua  sponte 
evidence  which  is  clearly  inadmissible  though 
not  objected  to  or  excepted  to  by  either 
party.2" 

§  113.  Examination  in  chief  —  Leading 
questions.— When  a  witness  has  been  duly 
sworn,  he  must  be  first  examined  in  chief  by 
questions  propounded  on  behalf  of  the  party 
who  called  him.     This  examination  must  re- 

^7  Stringer  v.  Young's  Lessee,  3  Pet.,  320,  325 ; 
People  V.  Bowling,  84  N.  Y.,  478,  486;  Blossom  v. 
Barnett,  37  N.  Y.,  438;  97  Am.  Dec,  747;  Higgins  v. 
Carlton,  28  Md.,  105 ;  92  Am.  D.,  666,  671 ;  Manning 
V.  Burlington,  64  Iowa,  240;  20  N.  W.,  169. 

18  Farmers'  -Bank  v.  Whinfield,  24  Wend.,  419, 
425 ;  Waldron  v.  Romaine,  22  N.  Y.,  368,  371 ;  Fur- 
bish V.  Goodwin,  25  N.  H.,  425,  447. 

19  Lake  Roland  Ry.  Co.  v.  Weir,  86  Md.,  273 ;  37 
A.,  714. 

20  B.  &  0.  R.  R.  Co.  V.  State  use  of  Block,  107  Md., 
642,  657 ;  69  A.,  439 ;  72  A.,  340. 


278  PRODUCTION  OF   EVIDENCE  [PART   III 

late  to  facts  in  issue  or  relevant  thereto ;  and 
all  leading  questions,  i.  e.,  such  as  suggest  the 
answer  which  the  person  putting  them  wishes 
or  expects  to  receive,  or  suggest  disputed 
facts  as  to  which  the  witness  is  to  testify, 
must  not  be  asked  if  objected  to  by  the  ad- 
verse party,  except  with  the  permission  of 
the  court.  This  should  always  be  given  when 
the  witness  is  evidently  hostile  to  the  party 
calling  him,  or  reluctant  to  give  evidence,  or 
when  omissions  in  his  testimony  are  plainly 
caused  by  want  of  recollection  which  a  sug- 
gestion may  assist.^^  A  witness  under  ex- 
amination will  not  be  permitted  to  obtrude 
irrelevant  matter  in  answer  to  a  question  not 
relating  to  it,  and  if  he  should  attempt  to  do 
so,  such  answer  may,  upon  application  of 
either  party,  be  excluded  from  the  evidence; 
for  otherwise  an  adverse  witness  might  ser- 
iously injure  the  case  of  the  party  who  called 
him,  or  a  too  friendly  one  might  introduce 
matters  foreign  to  the  question  and  unfavor- 
able to  the  other  side.     If,  however,  the  ex- 

21  Ste.  Dig.,  art.  128;  1  Gr.  Ev.,  §  435;  Tay.  Ev., 
§§  1404,  1405;  Turney  v.  State,  8  Sm.  &  Marsh.,  104; 
47  Am.  D.,  84;  Barton  v.  Kain,  17  Wis.,  38;  84  Am. 
D.,  728 ;  Graves  v.  Merchants'  &  Bankers'  Ins.  Co.,  83 
Iowa,  657  J  49  N.  W.,  65;  31  Am.  St.  E.,  507. 


CHAP.    TV]  EXAMINATION  IN  CHIEF  279 

amining  party  fails  to  have  such  irresponsive 
answer  excluded  as  irrelevant,  his  adversary 
has  the  option  of  either  doing  so  himself,  or 
treating  it  as  evidence  and  cross-examining 
upon  it.  This  rule  applies  also  to  irrelevant 
answers  to  questions  put  on  cross-examina- 
tion, which,  unless  the  person  cross-examin- 
ing applies  to  have  them  stricken  out,  may  be 
made  the  subject  of  re-examination  by  the 
other  side.^^ 

§  114.  Refreshing  memory.— A  witness, 
while  under  examination,  may  refresh  his 
memory  by  referring  to  any  writing  made  by 
himself  at  the  time  of  the  transaction  about 
which  he  is  testifying,  or  so  soon  afterwards 
that  the  judge  considers  it  to  have  been  then 
fresh  in  his  memory,  or  by  any  writing  made 
by  any  other  person  which  he  examined 
within  the  time  aforesaid  and  then  knew  to 
be  correct.^ ^  If  the  witness  can  testify  pos- 
itively to  its  accuracy,  such  writing  may  itself 
be  put  in  evidence.^'*    A  witness  may  not  use 

22  1  Starkie  Ev.,  p.  *316;  1  Gr.  Ev.,  §  468;  Tay 
Ev.,  §  1475;  1  Thomp.  Tr.,  §  718;  Abb.  Tr.  Bf.,  p. 
62 ;  Brashears  v.  Orme,  93  Md.,  541 ;  49  A.,  620. 

23Ste.  Dig.,  art.  136;  Tay.  Ev.,  §§  1406-1410;  1 
Gr.  Ev.,  §§  436-438;  1  Thomp.  Tr.,  §  398,  etc. 

2-^  1  Gr.  Ev.,  §  437,  note  3  :  Insurance  Co.  v.  Weides, 


280  PRODUCTION  OF   EVIDENCE  [PART   III 

for  this  purpose  a  copy  of  such  writing,  un- 
less, after  he  has  refreshed  his  memory  by 
looking  at  it,  he  can  swear  to  a  distinct  recol- 
lection of  the  matters  contained  in  it,  inde- 
pendently of  the  paper.-^  The  reason  for 
this  distinction  is,  that  whenever  the  witness' 
testimony  is  in  any  degree  dependent  upon 
the  contents  of  a  writing,  the  existence  and 
genuineness  of  such  writing  become  impor- 
tant factors  in  estimating  the  weight  to  be 
given  to  his  testimony,  and  must  therefore  be 
established  by  the  best  evidence,  which  is  the 
production  of  the  original  paper;  but  of 
course  this  is  not  applicable  to  cases  where 
the  matters,  after  having  been  recalled  to 
mind,  are  recollected  perfectly,  and  without 
reference  to  the  means  by  which  they  are  so 
recalled.  It  appears  to  be  somewhat  upon 
this  principle  that  expert  witnesses  are  per- 
mitted to  refresh  their  memory  by  referring 
to  professional  treatises.^^  Whenever  a  wit- 
ness uses  any  document  to  refresh  his  mem- 

9  Wall.,  677-680;  S.  C,  14  Wall.,  375-380;  Euch  v. 
Eock  Island,  97  U.  S.,  693-695;  2  Elliott  Ev.,  §  873. 

25  1  Gr.  Ev.,  §§  436,  437;  Tay.  Ev.,  §§  1408,  1409; 
Hill  V.  State,  17  Wis.,  675,  679;  86  Am.  D.,  936. 

26  Tay.  Ev.,  §  1422;  Ste.  Dig.,  art.  136;  Eippon  v. 
Bittel,  30  Wis.,  614;  Harvey  v.  State,  40  Ind.,  516. 


CHAP.    IV]  REFRESHING   MEMORY  281 

ory,  the  adverse  party  has  a  right  to  inspect 
it,  and  cross-examine  him  upon  it;  not  only 
that  he  may  test  its  genuineness  and  admis- 
sibility for  the  purpose  intended,  but  also 
that  he  may  have  the  benefit  of  the  witness 
refreshing  his  memory  by  every  part  of  it. 
When,  however,  a  paper  which  has  been 
shown  to  a  witness  for  the  purpose  of  re- 
freshing his  memory  ^oes  not  have  that  ef- 
fect, the  adverse  party  has  no  such  right  to 
inspect  it,  for  there  would  be  no  object  to  be 
gained  by  his  so  doing.^^ 

§  115.  Cross-examination  —  Questions  af- 
fecting credibility  —  Leading  questions.— 
Whenever  a  witness  has  been  examined,  the 
opposite  party  always  has  a  right  to  cross- 
examine  him;  and  in  case  a  witness  dies,  or 
becomes  incapable  of  being  further  examined 
before  an  opportunity  for  his  cross-examina- 
tion has  been  afforded  to  the  party  against 
whom  his  evidence  is  to  be  used,  the  testimony 
already  given  must  be  excluded.^^  The  cross- 
examination  must  be  confined  to  the  facts  and 

27  Tay.  Ev.,  §  1413 ;  1  Gr.  Ev.,  §§  437,  note  3,  466; 
Ste.  Dig.,  art.  137;  1  Whar.  Ev.,  §  525 ;  Eosc.  Ev.  K 
P.,  185 ;  2  Elliott  Ev.,  §  903. 

28  1  Gr.  Ev.,  §  445,  note  2 ;  Kissam  v.  Forrest,  25 
Wend.,  651 ;  People  v.  Cole,  43  N.  Y.,  508. 


282  PRODUCTION  OF   EVIDENCE  [PART   III 

circumstances  connected  with  the  matters 
stated  by  the  witness  in  his  direct  examina- 
tion, and  to  questions  tending  to  test  his  ac- 
curacy, veracity  or  credibility,  or  to  shake  his 
credit  by  injuring  his  character.^^  The  wit- 
ness may  be  compelled  to  answer  any  such 
question,  however  irrelevant  it  may  be  to  the 
facts  in  issue,  and  however  disgraceful  the 
answer  may  be  to  himself,  if,  in  the  opinion 
of  the  judge,  such  question  be  material  to  af- 
fect the  credibility  of  his  testimony,  and  un- 
less it  be  such  that  the  answer  might  have  a 
tendency  to  render  the  witness  liable  to  some 
criminal  prosecution,  penalty  or  forfeiture, 
as  explained  in  sec.  102,  ante.^^ 

29  1  Gr.  Ev.,  §  445 ;  1  Whar.  Ev.,  §  529.  But  this 
limitation  is  not  applied  in  several  of  the  states,  as 
Massachusetts,  New  York,  Ohio,  Alabama,  Mississippi, 
Missouri  and  Michigan;  2  Elliott  Ev.,  §  917,  etc. 

30  Ste.  Dig.,  art.  126 ;  1  Gr.  Ev.,  §§457-460 ;  1  Whar. 
Ev.,  §§529-548;  Carroll  v.  State,  32  Texas  Cr.  R., 
401;  24  S.  W.,  100;  40  Am.  St.  R.,  786.  There  has 
been  considerable  conflict  of  authority  in  this  country 
[see  1  Gr.  Ev.,  §  457;  Newcomb  v.  Griswold,  24  N. 
Y.,  298;  contra.  State  v.  March,  1  Jones'  (N.  C.)  L., 
526;  and  State  v.  Garrett,  Busb.  (N.  C.)  L.,  327],  as 
to  whether,  if  objection  be  made,  a  witness  can  be 
asked  if  he  has  been  previously  convicted  of  any  crime 
or  misdemeanor,  inasmuch  as  the  record  of  the  judg- 


CHAP.    IV]  CROSS  EXAMINATION  283 

Subject  to  this  exception,  the  party  cross- 
examining  has  a  right  to  ask  and  require  an 
answer  to  any  question  concerning  the  situa- 
tion of  the  witness  with  respect  to  the  parties 
and  to  the  subject  of  litigation,  his  interest, 
his  motives,  his  inclination  and  prejudices,  his 
means  of  obtaining  a  correct  and  certain 
knowledge  of  the  facts  to  which  he  bears 
testimony,  the  manner  in  which  he  has  used 

ment  is  the  best  evidence  of  such  conviction ;  but  this 
technicality  does  not  necessarily  stand  in  the  way  of 
his  being  asked  whether  he  has  ever  been  in  jail  or  the 
penitentiary,  and  if  so,  how  long  he  has  been  there. 
Real  V.  People,  42  N".  Y.,  270-280;  1  Whar.  Ev.,  §  541, 
note.  The  modern  tendency,  however,  is  to  allow  such 
questions  and  to  require  an  answer  to  them  when 
they  appear  to  be  put  for  the  purpose  of  honestly  dis- 
crediting the  witness.  Wliar.  Cr.  Ev.,  §  474 ;  State  v. 
Bacon,  13  Oreg.,  143;  9  P.,  393;  57  Am.  Rep.,  p.  8, 
and  cases  cited  in  note,  p.  16.  Also,  Com.  v.  Racco, 
225  Pa.  St.,  113,  116;  73  A.,  1067;  133  Am.  St.  R., 
872.  In  England  it  has  been  provided  by  statute  (28 
and  29  Vic,  c.  18,  §  6)  that  a  witness  may  be  ques- 
tioned as  to  whether  he  has  been  convicted  of  any 
felony  or  misdemeanor ;  and  upon  being  so  questioned, 
if  he  either  denies  or  does  not  admit  the  fact,  or 
refuses  to  answer,  the  cross-examining  party  may  prove 
such  conviction  by  a  certificate  of  the  clerk  of  the 
court  where  he  was  convicted.    Tay.  Ev.,  §  1434. 


284  PRODUCTION   OF   EVIDENCE  [PART   III 

those  means,  and  his  powers  of  discernment, 
memory  and  description ;  for  it  is  the  purpose 
of  cross-examination  to  investigate,  ascertain 
and  submit  all  such  matters  to  the  considera- 
tion of  the  jury  before  whom  the  witness  has 
testified,  in  order  that  they  may  have  an  op- 
portunity of  observing  his  demeanor  and  de- 
termining the  just  weight  and  value  of  his 
testimony.'^^ 

The  extent  to  which  a  witness  may  be  cross- 
examined  as  to  matters  that  are  only  relevant 
in  so  far  as  they  may  shake  his  credit  by  in- 
juring his  character  is  a  matter  confided  to 
the  discretion  of  the  judge  who  presides  at 
the  trial ;  ^^  and  as  the  exercise  of  this  dis- 
cretion is  not  subject  to  review  on  appeal,  ex- 
cept in  cases  of  plain  abuse  and  injustice,^^ 
he  should  never  compel  a  witness  to  answer, 
or  even  allow  him  to  be  asked,  vexatious  or 
degrading  questions,  unless,  under  the  pecul- 
iar circumstances  of  the  case,  the  ends  of 
justice  appear  to  require  it.^^     In  criminal 

31  1  Stark.  Ev.,  p.  *195 ;  1  Gr.  Ev.,  §  446 ;  Tay.  Ev., 
§§1460, 1461 ;  1  Whar.  Ev.,  §  545. 

32  Gr.  Western  Turnpike  Co.  v.  Loomis,  32  N.  Y., 
127,  132 ;  Storms  v.  United  States,  94  U.  S.,  76,  85. 

33  Johnston  v.  Jones,  1  Black  (U.  S.),  210,  226. 

34  Probably  the  best  rule  for  the  exercise  of  this 


CHAP.    IV]  CROSS  EXAMINATION  ^  285 

cases  when  the  accused  is  a  witness  and  the 
judge  permits  questions  to  be  put  to  him  on 
cross-examination  which  have  no  bearing 
upon  the  charge  on  which  he  is  being  tried, 
and  do  not  legitimately  tend  to  impeach  his 
credibility,  but  may  prejudice  the  mind  of  the 
jury  against  him,  a  judgment  of  conviction 
will  be  reversed  on  appeal.^^  Leading  ques- 
tions are  generally  permitted  on  cross-ex- 

discretion  is  that  given  in  §  148  of  the  Indian  Evi- 
dence Act  of  1872,  which  provides: 

(1)  Such  questions  are  proper  if  they  are  of  such 
a  nature  that  the  truth  of  the  imputation  conveyed  by 
them  would  seriously  affect  the  opinion  of  the  court 
as  to  the  credibility  of  the  witness  on  the  matter  to 
which  he  testifies. 

(2)  Such  questions  are  improper  if  the  imputation 
which  they  convey  relates  to  matters  so  remote  in 
time,  or  of  such  a  character,  that  the  truth  of  the  im- 
putation would  not  affect,  or  would  affect  in  a  slight 
degree,  the  opinion  of  the  court  as  to  the  credibility  of 
the  witness  on  the  matter  to  which  he  testifies. 

(3)  Such  questions  are  improper  if  there  is  a  great 
disproportion  between  the  importance  of  the  imputa- 
tion made  against  the  witness'  character  and  the  im- 
portance of  his  evidence.    See  Ste.  Dig.,  note  XL VI. 

35  People  V.  Crapo,  76  N.  Y.,  288 ;  32  Am.  Rep., 
302 ;  but  see  Jackson  v.  State,  33  Tex.  Cr.  R.,  281 ; 
26  S.  W.,  194,  622;  47  Am.  St.  R.,  30. 


286  PEODUCTION  OF  EVIDENCE  [PAET  III 

amination,  upon  the  theory  that  the  witness  is 
presumably  favorably  inclined  towards  the 
party  who  called  him ;  ^^  but  as  the  judge 
may  permit  them  in  the  direct  examination 
when  the  witness  is  evidently  hostile  to  the 
party  who  called  him,  so  he  may  prohibit  them 
on  cross-examination  when  the  witness  shows 
a  strong  interest  or  bias  in  favor  of  the  cross- 
examining  party."'^  Especially  is  this  the 
case  when  a  party  to  the  suit  is  examined  as 
a  witness  by  his  adversary,  where  the  exam- 
ination in  chief  should  be  governed  by  the 
rules  applicable  to  a  cross-examination,  and 
the  cross-examination  should  be  conducted 
as  a  re-examination.  This  would  seem  to  be 
the  correct  rule  upon  principle,  although 
there  does  not  appear  to  be  any  reported  de- 
cision directly  bearing  upon  the  point. 

§  116.  How  far  answers  on  cross-examina- 
tion may  be  contradicted.— When  a  witness 
under  cross-examination  has  been  asked,  and 
has  answered,  any  question  which  is  relevant 
to  the  inquiry  only  in  so  far  as  it  tends  to 
shake  his  credit  by  injuring  his  character,  no 

38  1  Gr.  Ev.,  §  447 ;  1  Whar.  Ev.,  §  527. 

s7Tay.  Ev.,  §§1404,  1431;  Moody  v.  Eowell,  17 
Pick.,  498;  28  Am.  D.,  317;  Clarke  v.  Saffery,  Ey. 
&  M.,  126. 


CHAP.    IV]  CROSS  EXAMINATION"  287 

evidence  can  be  afterwards  given  to  contra- 
dict his  answer.^*  This  rule  is  founded  on 
two  reasons :  first,  that  a  witness  cannot  be 
expected  to  come  prepared  to  defend  all  the 
actions  of  his  life;  and  next,  that  to  admit 
contradictory  evidence  on  such  points  would 
of  necessity  lead  to  inextricable  confusion,  by 
raising  an  almost  endless  series  of  collateral 
issues. ^^  As  neither  of  these  reasons  apply 
to  questions  relating  to  relevant  facts,  the 
best  test  of  whether  the  denial  of  a  fact  on 
cross-examination  may  be  contradicted  is 
this:  ''Would  the  cross-examining  party  be 
entitled  to  prove  such  fact  as  part  of  his  case 
if  it  had  not  been  alluded  to  in  the  cross-ex- 
amination?"**' Hence,  when  a  witness  de- 
nies, on  cross-examination,  any  fact  tending 
to  show  that  he  is  not  impartial,  such  fact 
may  be  proved  by  other  testimony,  notwith- 
standing his  denial;  for  the  other  party 
would  have  had  the  right  to  give  evidence  of 

38  Ste.  Dig.,  art.  130;  Tay.  Ev.,  §  1438:  Carroll  v. 
State,  38  Tex.  Cr.  R.,  431 ;  24  S.  W.,  100 ;  40  Am.  St. 
R.,  786. 

39  Tay.  Ev.,  §  1439. 

40  1  Whar.  Ev.,  §  559;  per  Sharswood,  P.,  in  Hilde- 
burn  V.  Curran,  65  Pa.  St.,  63 ;  Combs  v.  Winchester, 
39  K  H.,  13;  75  Am.  D.,  203;  2  Ell.  Ev.,  §  977. 


288  PEODUCTION  OF  EVIDENCE  [PART  III 

that  fact  without  having  interrogated  the  wit- 
ness in  regard  to  it  at  all.^^ 

§117.  When  proper  foundation  laid  on 
cross-examination,  previous  inconsistent  state- 
ments may  be  proved.— But  a  witness  may 
always  be  asked  on  cross-examination 
whether  he  has  not  made  any  former  state- 
ment as  to  some  fact  relative  to  the  subject 
matter  of  the  action,  and  inconsistent  with 
his  present  testimony;  and  if  the  circum- 
stances of  such  supposed  statement  are  re- 
ferred to  with  sufficient  particularity  to 
clearly  designate  the  occasion,  and  he  does 
not  distinctly  admit  having  made  such  a  state- 
ment, proof  may  be  afterwards  given  that  he 
did  in  fact  make  it.'*^  Such  proof  is  admitted 
upon  the  ground  that  the  fact  of  the  witness 
having  previously  made  conJ9icting  state- 
ments would  materially  diminish  the  confi- 
dence which  might  otherwise  be  placed  in  his 
present  testimony;  but  the  general  rule  is, 

4^  Tay.  Ev.,  §  1442 ;  Att'y-Gen.  v.  Hitchcock,  1  Ex. 
R,  94,  100, 102;  Lodge  v.  State,  122  Ala.,  99;  26  So., 
210;  82  Am.  St.  R.,  23,  note. 

42  Ste.  Dig.,  art.  131 ;  Tay.  Ev.,  §  1445;  1  Gr.  Ev., 
§  449 ;  1  Whar.  Ev.,  §  551 ;  Conrad  v.  Griffey,  16  How.,  ^ 
38,  46 ;  Whiteford  v.  Burckmyer,  1  Gill,  227 ;  39  Am. 
D.,  640;  2  Elliott  Ev.,  §  974. 


CHAP.    IV]        INCONSISTENT    STATEMENTS  289 

that  a  proper  foundation  must  be  laid  for  it 
by  first  asking  the  witness  whether  he  has  not 
made  such  prior  contradictor^^  statements,  in 
order  to  enable  him  to  recall  the  incidents, 
and  explain,  if  he  can,  the  apparent  inconsist- 
encies.'*^ Such  a  restriction  would  seem  to 
be  no  more  than  simple  justice  to  the  witness 
whose  credibility  is  thus  attacked,  but  in  sev- 
eral of  the  states  of  the  Union  it  is  either  not 
imposed  at  all,'*'*  or  else  left  discretionary 
with  the  court."*^ 

§  118.  Previous  inconsistent  statements  in 
writing  may  not  be  proved  unless  writing-  first 
shown  to  witness  or  its  absence  explained.— 
Where  the  previous  inconsistent  statement 
referred  to  in  the  preceding  section  has  been 
made  in  writing,  the  witness  may  not  be 
cross-examined  in  reference  to  it,  until  the 
paper  has  first  been  shown  to  him,  and  he  has 

43  1  Gr.  Ev.,  §  462;  1  Whar.  Ev.,  §  555;  Mattoi  v. 
United  States,  156  U.  S.,  237,  244;  Skaggs  v.  Martin- 
ville,  140  Ind.,  476 ;  39  N.  E.,  241 ;  49  Am.  St.  R.,  209 ; 
33  L.  E.  A..  781. 

44  In  Maine,  New  Hampshire,  Vermont,  Massa- 
chusetts and  Connecticut.  See  cases  cited,  1  Whar., 
Ev.,  §  556. 

45  Pennsylvania  and  Minnesota.  See  1  Whar.  Ev., 
§  556. 

19 


290  PRODUCTION  OF   EVIDENCE  [PART   III 

admitted  that  he  wrote  it.  If  he  admits  hav- 
ing written  it,  the  paper  must  itself  be  put  in 
evidence  as  the  best  proof  of  its  contents,  but 
if  he  denies  having  written  it,  he  cannot  be 
further  interrogated  in  regard  to  it,  nor  has 
the  opposing  party  a  right  to  inspect  it  until 
it  has  been  proved  by  other  evidence  to  be  in 
the  handwriting  of  the  witness ;  for  until  this 
is  done,  it  is  not  admissible  in  evidence  at  all, 
and  its  contents  can  have  no  relevancy  to  the 
case.'^^  If  it  be  shown  that  the  paper  has 
been  lost  or  destroyed,  or  that  it  is  not  in  the 
power  of  the  cross-examining  party  to  obtain 
it,  the  regular  course  would  be  to  first  prove 
its  contents  by  secondary  evidence,  and  then 
ask  the  witness  if  he  wrote  such  a  paper; 
but  it  is  always  discretionary  with  the  judge 
to  depart  from  this  order  of  proceeding 
whenever  it  seems  likely  to  occasion  inconven- 
ience by  disturbing  the  regular  progress  of 
the  trial.4^ 

§  119.  Re-examination  restricted  to  expla- 
nation of  statements  on  cross-examination- 
Leading  questions.— After  the  cross-examina- 
tion is  concluded,  the  party  who  called  the 
witness  has  a  right  to  re-examine  him  for  the 

46  1  Gr.  Ev.,  §  463;  2  Elliott  Ev.,  §  976. 

47  1  Gr.  Ev.,  §§  464,  465;  Tay.  Ev.,  §  1447. 


CHAP.    IV]  IMPEACHING   WITNESSES  291 

purpose  of  obtaining  an  explanation  of  the 
matters  referred  to  in  cross-examination.  He 
may  ask  him  all  questions  proper  to  draw 
forth  an  explanation  of  the  sense  and  mean- 
ing of  the  expressions  used  by  the  witness  on 
cross-examination,  if  they  be  in  themselves 
doubtful,  and  also  of  the  motives  which  moved 
him  to  use  such  expressions;  but  he  cannot 
go  further  and  introduce  matter  new  in  itself, 
and  not  suited  to  the  purpose  of  explaining 
either  the  expressions  or  the  motives  of  the 
witness.^^  A  witness  may  be  re-examined 
upon  every  matter  stated  by  him  on  his  cross- 
examination,  whether  the  facts  so  stated  by 
him  were  properly  admissible  in  evidence  or 
not,  unless  such  statement  was  expressly  ex- 
cluded from  the  evidence  at  the  time  it  was 
made,  as  irresponsive  to  the  question  or 
otherwise  irrelevant.^^  The  rule  restricting 
the  putting  of  leading  questions  on  examina- 
tion in  chief  applies  equally  to  putting  them 
on  re-examination.^''  Whenever,  by  permis- 
sion of  the  court  or  consent  of  the  other  side, 
a  party  elicits  from  his  witness  on  re-exam- 

48  1  Stark.  Ev.,  p.  *231 ;  1  Gr.  Ev.,  §  467 ;  Tay.  Ev., 
§  1474;  2  ElHott  Ev.,  §§  929-938. 

49  1  Gr.  Ev.,  §  468;  Tay.  Ev.,  §  1475;  ante,  §  99. 

50  Ste.  Dig.,  art.  128. 


292  PRODUCTION  OF  EVIDENCE  [PART  III 

ination  matters  which  should  properly  have 
been  given  in  evidence  upon  the  examination 
of  the  witness  in  chief,  his  adversary  has  a 
right  to  cross-examine  the  witness  upon  such 
new  matters;  and  the  party  who  called  the 
witness  may  re-examine  him  again,  but  only 
upon  the  subject  of  such  second  cross-exam- 
ination.'^^ 

§120.  Impeaching  credit  of  witness,  in 
what  cases  allowable.— After  the  examination 
of  a  witness  has  been  concluded,  his  credit 
may  be  impeached  in  four  ways :  1.  By  dis- 
proving by  the  testimony  of  other  witnesses, 
any  facts  stated  by  him  which  are  material  to 
the  issues  on  trial.^^  2.  By  proof  of  his  hav- 
ing made  statements  out  of  court  inconsistent 
with  his  testimony,  in  cases  where  the  neces- 
sary foundation  has  been  first  laid  by  inter- 
rogating the  witness  about  such  contradictory 
statements,  as  already  explained.^^  3.  By 
proof  of  any  facts  showing  a  bias  or  prejudice 
on  the  part  of  the  witness  in  favor  of  the 
party  by  whom  he  was  called  or  against  the 
opposite  party,  as  relationship,  sympathy,  or 
interest  in  the  matter  of  controversy  or  in  the 

51  Ste.  Dig.,  art.  186. 
«2  Ante,  §  116. 
fi^Ante,  §  117. 


CHAP.   IV]  IMPEACHING  WITNESSES  298 

event  of  the  suit;^^  or  proof  of  the  witness 
having  been  convicted  of  any  infamous  crime, 
in  cases  where  such  conviction  would  not  ren- 
der him  incompetent  to  testify.^^  4.  By  gen- 
eral evidence  affecting  his  character  for  ver- 
acity.'*^ A  party  may  not  thus  impeach  the 
credit  of  his  own  witness  further  than  by 
contradicting  his  testimony  as  to  any  par- 
ticular facts  by  the  testimony  of  other  com- 
petent witnesses.  The  reason  for  this  rule  is, 
that  a  party  who,  by  calling  a  witness,  repre- 
sents him  to  the  court  as  worthy  of  credit,  or 
at  least  not  so  infamous  as  to  be  wholly  un- 
worthy of  it,  should  not  be  permitted  to  im- 
pugn that  witness'  general  reputation  for 
truth,  or  to  impugn  his  credibility  by  general 
evidence  tending  to  show  him  unworthy  of 
belief;  for  this  would  ^'enable  him  to  destroy 
the  witness  if  he  spoke  against  him,  and  to 
make  him  a  good  witness  if  he  spoke  for  him, 
with  the  means  in  his  hands  of  destroying  his 
credit  if  he  spoke  against  him.'"^^    As  this 

54  1  Whar,  Ev.,  §  566 ;  State  v.  Burpee,  63  Vt.,  1 ; 
25  A.,  964;  36  Am.  St.  R,  772 ;  19  L.  E.  A.,  145. 

55  1  Whar.  Ev.,  §  667 ;  Com.  v.  Knapp,  9  Pick.,  496 ; 
20  Am.  D.,  491. 

56  1  Gr.  Ev.,  §  461 ;  1  Whar.  Ev.,  §  562. 

57  Bull.  N.  P.,  297 ;  1  Gr.  Ev.,  §  442 ;  1  Whar.  Ev., 
§  547 ;  2  Elliott  Ev.,  §  985. 


294  PRODUCTION  OF  EVIDENCE  [PART  III 

reasoning  is  not  applicable  where  the  witness 
is  not  one  of  the  party 's  own  selection,  as  the 
subscribing  witness  to  a  will  or  deed,  a  party 
is  generally  allowed  to  impeach  the  veracity 
of  any  witness  whom  the  law  obliges  him  to 
call  f^  and  as  it  often  happens  that  a  witness 
who  intends  to  speak  the  truth  may,  either 
from  misapprehension  or  imperfect  knowl- 
edge or  recollection,  state  a  particular  fact  in- 
correctly, there  is  no  reason  why,  when  one 
of  a  party's  witnesses  has  misstated  a  fact, 
such  party  should  be  precluded  from  showing 
what  actually  did  take  place  by  any  other 
competent  testimony.^ ^  A  party  who  has 
been  taken  by  surprise  by  the  testimony  of 
his  own  witness  is  generally  permitted  to 
cross-examine  him  as  to  what  he  had  stated 
in  regard  to  the  matter  on  former  occasions, 
either  in  court  or  otherwise,  for  the  purpose 
of  refreshing  the  memory  of  the  witness  and 
giving  him  full  opportunity  to  set  the  matter 
right,  as  well  as  for  the  purpose  of  explaining 
the  attitude  of  the  party  calling  the  witness. 
But  such  questions  cannot  be  put  for  the  mere 
purpose  of  discrediting  the  witness,  nor  can 

58  1  Gr.  Ev.,  §  443. 

«»  1  Gr.  Ev.,  §  443;  1  Stark.  Ev.,  p.  *244;  1  Whar. 

Ev.,  §  549. 


CHAP,   IV]  IMPEACHING  WITNESSES  295 

his  contradictory  statements  upon  other  oc- 
casions be  proved  ordinarily  by  other  wit- 
nesses.*^*^ 

§  121.  Proof  of  particular  facts  tending  to 
show  bias,  or  previous  conviction  of  an  in- 
famous crime.— Of  the  four  methods  above 
enumerated  by  which  the  credit  of  a  witness 
may  be  impeached  by  the  adverse  party,  the 
first  and  second  need  no  further  explanation 
in  addition  to  what  has  been  already  stated 
concerning  them.®^  The  third  method,  which 
is  by  proof  of  particular  facts  tending  to 
show  that  the  witness  is  subject  to  some  bias, 
or  has  been  convicted  of  an  infamous  crime, 
derives  its  origin  mainly  from  the  effect  of 
the  statutes  removing  the  former  disqual- 
ification of  witnesses  upon  the  ground  of  in- 
terest or  of  infamy.    To  that  extent  it  is  an 

60  1  Gr.  Ev.,  §  444a ;  1  Whar.  Ev.,  §  549 ;  Cox  v. 
Eayres,  55  Vt.,  24;  45  Am.  Rep.,  583;  Hickory  v. 
United  States,  151  U.  S.,  303,  9.  While  the  weight  of 
authority  is  against  receiving  testimony  of  such  con- 
tradictory statements,  it  has  been  held  in  several  late 
cases  that  the  court  has  discretionary  power  to  admit 
it.  See  Selover  v.  Bryant,  54  Minn.,  534 ;  56  N.  W., 
58;. 40  Am.  St.  E.,  349;  21  L.  R.  A.,  418;  Smith  v. 
Briscoe,  65  Md.,  561 ;  5  A.,  334. 

«i  Ante,  §§  116,  117. 


296  PRODUCTION  OF  EVIDENCE  [PART  III 

innovation  upon  the  common  law,  which  re- 
quires all  objections  going  to  the  competency 
of  a  witness  to  be  made  before  he  is  sworn, 
or  if  subsequently  discovered,  as  soon  as 
they  come  to  tlie  knowledge  of  the  objecting 
party,  and  to  be  sustained  by  proof  to  the 
court,  and,  unless  this  is  done,  considers  them 
waived.^-  In  actual  practice  it  is  usual  to 
first  interrogate  a  witness  upon  cross-exam- 
ination as  to  the  existence  of  any  facts  show- 
ing that  he  is  subject  to  some  bias,  or  has  an 
interest  in  the  event  of  the  suit,  and  only  to 
introduce  other  evidence  of  such  facts  in  case 
he  denies  or  does  not  admit  them;  yet,  al- 
though this  course  is  to  be  commended  both 
on  account  of  its  fairness  and  as  calculated 
to  save  time,  there  seems  to  be  no  reason  why 
a  party  who  omits  to  lay  such  a  foundation 
should  therefore  be  precluded  from  after- 
wards introducing  independent  evidence  upon 
these  points.^^  In  the  absence  of  any  stat- 
es 1  stark.  Ev.,  pp.  *115,  *144;  1  Gr.  Ev.,  §§  421- 
425;  2  Elliott  Ev.,  §  973,  §  981. 

^2  See  ante,  §  116,  The  only  reported  case  which 
I  have  found  that  excluded  this  kind  of  evidence  be- 
cause the  witness  had  not  been  previously  interrogated 
on  the  subject  is  Edwards  v.  Sullivan,  8  Ired.  L.,  302. 
But  see  contra,  Martin  v.  Barnes,  7  Wis.,  239,  which 


CHAP,    IV]  IMPEACHING  WITNESSES  297 

utory  provision  upon  the  subject,  the  proof 
that  a  witness  has  been  convicted  of  any  in- 
famous crime  (unless  he  has  admitted  it  on 
cross  examination)  must  always  be  by  pro- 
duction of  a  copy  of  the  record  of  the  judg- 
ment of  his  conviction.^'* 

§  122.  Proof  of  general  reputation  for  want 
of  veracity.— The  fourth  method  of  impeach- 
ing the  credit  of  a  witness  is  by  the  testimony 
of  other  witnesses  to  the  effect  that  they  know 
his  general  reputation  for  truth  and  veracity 
in  the  community  in  which  he  has  lived,  and 
that  such  general  reputation  is  bad.  Such 
evidence  must  be  confined  to  his  general  rep- 
utation, and  no  testimony  as  to  particular 
facts  is  permitted;  for  every  man  is  sup- 
posed to  be  capable  of  supporting  the  one, 
but  it  is  not  likely  that  he  would  be  prepared 
to  answer  the  other  without  notice.''^     After 

seems  the  better  law.  Also  Wyeth  v.  Walzl,  43  Md., 
426 ;  Chilton  v.  State,  45  Md.,  564,  and  Lodge  v.  State, 
122  Ala.,  97;  26  So.,  210;  82  Am.  St.  R.,  23,  and  ex- 
tended note.  But  witness  cannot  be  impeached  by 
proof  of  his  having  been  indicted.  People  v.  Morri- 
son, 195  N.  Y.,  116;  88  N.  E.,  21;  133  Am.  St.  R., 
780. 

^^  See  ante,  §  115,  note. 

6f*  1  Gr.  Ev.,  §  461;  1  Whar.  Ev.,  §§  562-5;  conf. 
Tay.  Ev.,  §§  1470-1 ;  Ste.  Dig.,  art.  123 ;  and  see  Teese 


298  PRODUCTION  OF  EVIDENCE  [PART  III 

the  impeaching  witnesses  have  testified  that 
they  know  the  general  character  for  truth  and 
veracity  of  the  witness  sought  to  be  im- 
peached, and  that  it  is  bad,  they  may  be  fur- 
ther asked  whether  they  would  believe  him 
on  oath ;  ^^  but  it  is  not  held  essential,  in  or- 
der to  throw  discredit  upon  his  testimony, 
that  they  should  state  that  they  would  not  be- 
lieve him  on  his  oath.^'^  Although  the  testi- 
mony in  chief  of  the  impeaching  witnesses 
must  be  strictly  confined  to  general  reputa- 
tion, they  may  be  asked  on  cross-examina- 
tion to  name  the  persons  whom  they  have 
heard  speak  against  the  character  of  the  wit- 
ness impeached.^^  AYlien  the  character  of  a 
witness  has  been  thus  impeached,  the  party 
who  called  him  may  give  evidence  in  reply  to 

V.  Huntingdon,  23  How.,  2,  11 ;  also  note,  71  Am.  D., 
pp.  771-775 ;  Griffin  v.  State,  26  Tex.  Ap.,  157 ;  9  S. 
W.,  459;  8  Am.  St.  E.,  46;  2  Elliott  Ev.,  §  978. 

66  1  Whar.  Ev.,  §  565;  see  1  Gr.  Ev.,  §  461;  Tay. 
Ev.,  §  1470 ;  Spies  v.  People,  122  111.,  1 ;  12  N.  E., 
865;  17  K  E.,  898;  3  Am.  St.  R.,  320,  426;  Holbert 
V.  State,  9  Tex.  Cr.  Ap.,  219 ;  35  Am.  R.,  738. 

67  1  Whar.  Ev.,  §  565;  1  Gr.  Ev.,  §  461;  People  v. 
Tyler,  35  Cal.,  353. 

68  1  "\Vliar.  Ev.,  §  565;  1  Gr.  Ev.,  §§  461-2;  Mont- 
gomery V.  Crossthwaite,  90  Ala.,  553;  26  N.  E.,  575; 
24  Am.  St.  R.,  832,  843;  12  L.  R.  A.,  609. 


CHAP.  IV]  IMPEACHING  WITNESS  299 

show  that  he  is  worthy  of  credit,  by  either 
contradicting  the  testimony  or  attacking  the 
credibility  of  the  impeaching  witnesses.^^  In 
the  courts  of  the  United  States  and  of  most  of 
the  states  when  a  witness  is  impeached  in  this 
manner,  the  inquiry  is  restricted  to  his  gen- 
eral reputation  for  truth  and  veracity,  but 
the  English  rule  which  extends  it  to  his  gen- 
eral moral  character  is  followed  in  the  states 
of  Alabama,  Kentucky,  Missouri,  New  York, 
North  Carolina,  South  Carolina  and  Ten- 
nessee/*^ 

69  1  Whar.  Ev.,  §  568 ;  2  Elliott  Ev.,  §  972. 

70  Teese  v.  Huntingdon,  20  How.,  2 ;  Blue  v.  Kibby, 
1  T.  B.  Mon.,  195 ;  15  Am.  Dec,  95,  and  note ;  1  Whar. 
Ev.,  §§562,  563. 


CHAPTER  V. 

PRODUCTION  OF  DOCUMENTS. 

§  123.  How  party  to  suit  may  compel  his 
adversary  to  produce  documents.— The  com- 
mon law  provides  no  means  of  compelling  any 
party  to  a  suit  to  produce  any  document  in  his 
possession  or  power,  in  order  that  it  may  be 
used  in  evidence  by  his  adversary,^  excepting 
that  the  courts  may,  under  certain  circum- 
stances, as  hereafter  explained,  make  an  order 
for  the  inspection  of  writings  in  the  posses- 
sion of  one  party  to  a  suit  in  favor  of  anoth- 
er ;  2  and  that  whenever,  as  we  have  already 
seen,^  due  notice  has  been  given  to  any  party 
to  produce  at  the  trial  any  document  in  his 
possession  or  power,  his  failure  to  do  so  gives 
the  adverse  party  a  right  to  prove  the  contents 
of  such  document.  This  omission  to  pro- 
vide means  for  compellmg  a  party  to  the  suit 

1 1  Gr.  Ev.,  §  560. 

2  1  Gr.  Ev.,  §  559;  1  Whar.  Ev.,  §§  743-755.     See 
§  124  post. 
3§  71  (6),  ante. 

300 


CHAP.   V]  PRODUCING  DOCUMENTS  801 

to  produce  any  documentary  evidence  in  his 
possession  or  power,  was  but  carrying  out  the 
old  common  law  rule  that  parties  to  the  record 
could  not  be  compelled,  in  trials  by  jury,  to 
give  evidence  for  the  opposite  party  against 
themselves,  either  in  civil  or  criminal  cases.^ 
Although  by  statutory  enactments,  both  in 
this  country  and  in  England,  this  rule  has 
been  so  far  abrogated  as  to  make  a  party  com- 
pellable to  testify  at  the  summons  of  his 
adversary  in  civil  cases,  yet  as  very  few,  if 
any  at  all,  of  these  statutes  contain  express 
provisions  for  compelling  parties  to  produce 
any  documents  in  their  possession  or  power, 
it  has  been  denied  by  some  courts  that  the 
common  law  rule  in  this  particular  has  been 
at  all  affected  by  them ;  ^  but  it  may  be  con- 
sidered as  now  well  established  by  the  weight 
of  authority  that  under  these  statutes  an  ad- 
versary may  be  compelled  by  a  subpoena  duces 
tecum  to  produce  books  and  papers  in  his  pos- 
session the  same  as  any  other  witness.® 

4  1  Gr.  Ev.,  §  330. 

^  See  Trotter  v.  Latson,  7  How.  Pr.,  261 ;  Duke  v. 
Brown,  18  Ind.,  Ill;  Cross  &  Co.  v.  Johnson,  30 
Ark.,  396. 

«  Bonesteel  v.  Lynde,  8  How.  Pr.,  226 ;  People  v. 
Dyekman,  24  id.,  222;  Mitchell's  Case,  12  Abb.  Pr., 


302  PRODUCTIOX  OP    F.VIDEXCE  [PART  IIT 

§  124.  When  an  inspection  of  doctiments 
in  the  hands  of  opposite  party  will  be  allowed 
at  common  law.— The  cases  in  which  common 
law  courts  will  order  an  inspection  of  docu- 
ments in  the  possession  or  power  of  one  party 
to  be  allowed  to  his  adversary  independently 
of  any  statutory  provisions  upon  the  sub- 
ject, are:  (1)  When  the  document  of  which 
inspection  is  desired  has  been  set  forth  and 
relied  upon  by  either  party  in  his  pleadings.''^ 
(2)  When  the  plaintiff  is  desirous  of  bringing 
an  action  upon  an  instrument  executed  by 
himself  or  in  which  he  is  otherwise  interested, 
and  which,  being  in  the  hands  of  his  opponent, 
he  cannot  safely  declare  upon  without  first  in- 

249 ;-  conf .  Texas  v.  Chiles,  21  Wall.,  488 ;  U.  S.  v. 
Tilden,  10  Ben.,  566;  Merchants'  Nat.  Bk.  v.  State 
Nat.  Bk.,  3  Cliff.,  201.  See  note  in  Fed.  Rep.,  vol. 
15,  p.  722,  by  Jno.  D.  Lawson,  to  case  of  Wertheimer 
V.  Continental  R'y  &  Trust  Co.,  p.  716,  Circt.  Ct.  S. 
Dist.  N.  Y.,  Feb'y  17,  1883 ;  Bischoff's  Heirs  v.  Brown, 
29  Fed.  Rep.,  341,  343 ;  2  Elliott  Ev.,  §  700. 

7  Tay.  Ev.,  §  1588  (6th  ed.).  Mem.— This  and  the 
following  sections,  cited  as  of  the  sixth  edition  of 
Taylor,  are  omitted  in  the  later  editions  in  consequence 
of  statutory  changes  in  the  English  law.  See,  also. 
Woodman  v.  Devereux,  2  M.  &  Gr.,  758;  Blogg  v. 
Kent,  6  Bing.,  614. 


CHAP.   V]  PRODUCING  DOCUMENTS  303 

specting  it.®  (3)  Where  an  instrument  to 
which  the  applicant  is  either  a  party  or  a 
privy,  or  in  which  he  has  a  legal  interest,  has 
been  deposited  in  the  hands  of  another  party 
to  the  suit,  either  as  trustee  for  the  applicant 
only,  or  at  least  for  the  applicant  jointly  with 
himself.^  (4)  Where  it  appears  that  a  party 
has  some  legitimate  control  over  a  document, 
which,  if  in  his  possession,  he  would  be  re- 
quired to  allow  his  adversary  to  inspect,  the 
order  for  inspection  will  be  passed,  although 
such  document  be  actually  held  by  a  third 
person,  if  he  hold  it  as  the  agent  of  such 
party,  or  subject  to  his  authority.*^  In  all 
such  cases  the  method  of  obtaining  an  inspec- 
tion is  for  the  party  seeking  it  to  make  an 
application  to  the  court  or  to  a  judge  at  cham- 
bers, supported  by  an  affidavit  setting  forth 
the  facts,  and  stating  that  he  possesses  no 
copy  of  such  document,  and  that  no  counter- 
part thereof  was  ever  executed.^  ^ 

§  125.    Statutory  enactments  upon  this  sub- 
ject.— These  common  law  powers  of  the  courts 

8  Tay.  Ev.,  §  1589  (6tli  ed.)  ;  1  ^YhsiT.  Ev.,  §  743; 
1  Gr.  Ev.,  §  559 ;  Rowe  v.  Howden,  4  Bing.,  539,  note. 

9  Tay.  Ev.,  §  1590  (6th  ed.) ;  1  Whar.  Ev.,  §  743; 
Blogg  V.  Kent,  6  Bing.,  615. 

1"  Tay.  Ev.,  §  1591  (6th  ed.)  ;  1  Whar.  Ev.,  §  743. 
"  Tay.  Ev.,  §  1592  (6th  ed.) ;  1  Whar.  Ev.,  §  743. 


304  PRODUCTION  OF  EVIDENCE  [PART  III 

have,  however,  in  modem  times,  been  greatlj^ 
enlarged  by  statute.  The  courts  of  the  United 
States  are  empowered  by  act  of  congress,^ ^ 
upon  motion  being  made,  after  due  notice 
thereof,  by  either  of  the  parties  to  any  action 
or  legal  proceeding  pending  before  them,  to 
require  the  opposite  party  to  produce  books 
or  writings  in  his  possession  or  power,  which 
contain  evidence  pertinent  to  the  issues,  in 
cases  and  under  circumstances  where  such 
party  may  be  compelled  to  produce  the  same 
under  the  ordinary  rules  of  proceedings  in 
chancery,  and  if  said  party  fails  to  comply 
with  such  requirement,  to  enter  up  judgment 
of  non-suit  or  by  default  against  him.  Sim- 
ilar provisions  have  been  enacted  in  most  of 
the  states  of  the  Union. 

§126.  When  production  or  inspection  of 
documents  may  be  compelled  in  equity.— The 
cases  and  circumstances  under  which  the  pro- 
duction or  inspection  of  documents  may  be 
compelled  in  equity,  are  briefly  as  follows: 
The  complainant  or  party  desiring  such  pro- 
duction or  inspection  must  first  allege  in  his 
bill  (in  effect)  that  his  adversary  has  in  his 
possession  or  power  documents  relating  to 
the  matters  mentioned  in  the  bill,  and  that  by 

12  Rev.  Stats.  U.  S.,  §  724. 


CHAP.   V]         INSPECTION   OF   DOCUMENTS  305 

the  contents  of  said  documents,  if  the  same 
were  produced,  the  truth  of  such  complain- 
ant's case  would  appear.  The  defendant  is 
then  required  to  admit  or  deny  the  truth  of 
these  allegations ;  if  he  denies  having  posses- 
sion or  power  over  the  documents  described, 
that  ends  the  matter ;  but  if  he  admits  having 
possession  or  power  over  them,  he  is  bound 
to  describe  them  in  his  answer,  and  will  be 
required  to  produce  them  for  the  inspection 
of  the  complainant,^^  if  it  appears  to  the 
court,  from  the  answer  of  the  defendant,  that 
the  documents  so  admitted  by  him  to  be  in  his 
possession  or  power^^  are  relevant  to  the  case 
of  the  complainant,  either  as  affording  af- 
firmative evidence  of  some  right  or  title  be- 
longing to  him,  or  as  tending  to  disprove  the 
title  or  case  of  his  opponent  by  showing 
some  specific  defect  therein,^ '^  unless  it  also 
appears  that  such  documents  might  subject 
the  defendant  to  a  criminal  prosecution  or 
forfeiture,  or  would  violate  the  rules  which 

13  Wigram  on  Discovery,  §  285 ;  1  Pomeroy's  Equity 
Jurisp.,  §  229 ;  Lancy  v.  Randlett,  80  Me.,  169 ;  13  A., 
686;  6  Am.  St.  R.,  169. 

14  Wigram  on  Discovery,  §  294. 

iMVigr.  Disc,  §295;  Tay.  Ev.,  §§1604-5  (6th 
ed.)  ;  1  Wliar.  Ev.,  §  754;  2  Elliott  Ev.,  §  1385. 

20 


306  PRODUCTION  OF   EVIDENCE  [PART   lit 

relate  to  professional  privilege.^®  Sucli  pro- 
duction of  documents  will  be  compelled  in 
aid  of  civil  rights  only,  and  never  to  aid 
either  in  the  prosecution  of  or  the  defense  to 
an  indictment  or  information.^^  Nor  has  a 
party  any  right  whatever  to  the  discovery 
of  the  evidence,  or  an  .inspection  of  writings, 
which  either  relate  exclusively  to  his  adver- 
sary's case,  or  are  not  material  to  the  issues 
about  to  be  tried  at  law,^^  except  that  when- 
ever the  defendant,  having  admitted  such  doc- 
uments to  be  in  his  possession,  so  incorpo- 
rates them  by  general  or  special  reference 
with  his  answer  as  to  make  them  form  a  s*ub- 
stantial  part  of  it,  the  complainant  will  in 
such  case  be  entitled  to  their  production, 
whether  they  constitute  his  title  or  the  ex- 
clusive title  of  the  defendant ;  because  the 
latter,  by  thus  dealing  with  the  documents, 
will  be  held  to  have  waived  all  objection  to 
their  production.^ '^     In  all  cases  the  07ius  is 

i«  Tay.  Ev.,  §  1603  (6th  ed.)  ;  1  Whar.  Ev.,  §  754; 
Wigr.  Disc,  §§  127-147,  443. 

17  M^igr.  Disc,  §  10;  Tay.  Ev.,  §  1603  (6th  ed.). 

18  Tay.  Ev.,  §  1603  (6th  ed.) ;  Wigr.  Disc,  §§224- 
237;  Howell  v.  Ashmore,  1  Stock.,  82;  57  Am.  D., 
371,  375;  Boyd  v.  United  States,  116  U.  S.,  616. 

19  Tay.  Ev.,  §  1606  (6th  ed.)  ;  1  ^Vhar.  Ev.,  §  755. 


CHAP,   V]  PRODUCING  DOCUMENTS  307 

upon  the  party  seeking  the  discover}'  of  the 
contents  of  documents  to  prove  his  right 
thereto,  and  the  only  evidence  upon  wiiich  he 
can  rely  is  the  admissions  of  his  adversary."'^ 
§  127.  Production  of  documents  in  hands  of 
one  not  a  party  may  be  compelled  by  subpoena 
duces  tecum.— But  whenever  any  documents 
which  can  furnish  evidence  material  to  the 
issues  on  trial  are  in  the  hands  of  a  person 
other  than  a  party  to  the  suit,  such  person 
may  be  compelled  to  produce  all  such  docu- 
ments in  his  possession,  unless  he  have  a  law- 
ful or  reasonable  excuse  to  the  contrary; 
upon  the  same  principle  that  every  man,  in 
furtherance  of  justice,  is  bound  to  disclose 
all  the  facts  within  his  knowledge  which  do 
not  tend  to  his  own  crimination.^^  The 
method  by  which  such  production  is  compelled 
is  by  a  subpoena  duces  tecum,  which  is  issued 
upon  application  of  the  party  who  desires  to 
offer  the  documents  in  evidence,  and  must 
specify  them  with  reasonable  distinctness.^^ 

20  Tay.  Ev.,  §    1605  (6th  ed.)  ;  1  Whar.  Ev.,  §  755. 

21  Starkie  Ev.,  p.  *110;  2  Elliott  Ev.,  §  700. 

22  Tay.  Ev.,  §  1240 ;  1  Whar.  Ev.,  §  277.  The  power 
to  issue  it  is  alwaj^s  discretionary  with  the  court  which 
must  first  be  shown  that  priind  facie  the  document 
called  for  would  be  competent  evidence  in  the  case. 
Daniel  v.  Goodyear  Mfg.  Co.,  128  Fed.  R.,  753. 


308  PRODUCTION  OF   EVIDENCE  [PART  III 

When  a  witness  lias  been  served  with  a  sub- 
poena duces  tecum  he  is  bound  to  attend  with 
the  documents  demanded,  if  he  has  them  in 
his  possession,  and  he  must  leave  the  ques- 
tion of  their  actual  production  to  the  court, 
which  will  decide  upon  the  validity  of  any  ex- 
cuse that  may  be  offered  for  withholding 
them.22  The  witness  will  not  be  compelled 
to  produce  any  document  which  might  tend 
to  criminate  him  or  expose  him  to  any  pen- 
alty or  f  orf  eiture,^^  or  which  does  not  appear 
to  be  in  some  manner  relevant  to  the  issues  on 
trial.  Nor  will  an  attorney  be  required  to 
produce  any  document  which  he  holds  confi- 
dentially for  his  client,  and  which  his  client 
has  the  right  to  keep  back ;  but  he  may  be  re- 
quired to  testify  as  to  the  existence  of  such 
documents,  and  whether  they  are  in  his  pos- 
session, so  as  to  enable  the  other  party  to  give 
secondary  proof  of  their  contents.^^  This 
is  upon  the  theory  that  documents  so  held  by 
an  attorney  for  his  client  are  in  contempla- 

23  1  Starlrie  Ev.,  p.  *110;  Tay.  Ev.,  §1340;  1 
Whar.  Ev.,  §  377 ;  2  Elliott  Ev.,  §  1443. 

24  Ste.  Dig.,  art.  118;  Tay.  Ev.,  §  1464. 

25  Tay.  Bv.,  §§  457,  458;  Ste.  Dig.,  art.  119;  1 
Gr.  Ev.,  §  246 ;  1  Whar.  Ev.,  §  585 ;  2  Elliott  Ev.,  § 
1413. 


CHAP.    V]  IKTRODUCING  DOCUMENTS  309 

tion  of  law  in  the  possession  of  the  client  him- 
self. 

§  128.  Eow  documentary  evidence^  is  intro- 
duced.—Excepting  those  documents  which, 
being  authenticated  by  some  official  seal  or 
signature  of  which  the  court  takes  judicial 
notice,  may  be  said  to  prove  themselves,  no 
document  is  received  as  evidence  until  the 
party  desiring  to  offer  it  has  first  established 
its  genuineness,  to  the  satisfaction  of  the 
judge,  by  the  oral  testimony  of  one  or  more 
witnesses  to  the  handwriting,  or  to  the  place 
or  custody  from  which  it  was  obtained.  Be- 
fore the  document  can  be  read,  the  judge  must 
decide,  as  a  preliminary  question,  whether 
such  introductory  testimony  is  sufficient,  as- 
suming it  to  be  true,  to  render  the  document 
prima  facie  competent  as  evidence.  Its  cred- 
ibility must  be  left  for  the  jury  to  pass  upon 
in  making  up  their  final  verdict.^®  And 
therefore,  although  the  party  against  whom  it 
is  proposed  to  offer  the  document  is  not  per- 
mitted at  this  stage  of  the  trial  to  call  other 
witnesses  to  contradict  this  preliminary  tes- 
timony, he  may  cross-examine  the  witnesses 
by  whom  it  was  given,  in  order  to  show  its  in- 
sufficiency, and   thus    exclude   it   as   incom- 


26 


1  Gr.  Ev.,  §  49 ;  1  Elliott  Ev.,  §  28. 


310  PRODUCTION  OF   EVIDENCE  [PART  III 

petent.^'^  After  thus  producing  competent 
testimony  as  to  the  genuineness  of  the  docu- 
ment, the  party  by  whom  it  is  offered  must 
next  submit  it  to  the  inspection  of  the  oppos- 
ing counsel,  in  order  that  he  may  then  state 
his  objections,  if  any,  to  its  admissibility.  Al- 
though it  is  by  no  means  unusual  in  practice 
to  permit  the  opposing  counsel  to  examine 
documents  before  the  preliminary  proof  of 
their  genuineness  has  been  given,  yet  they 
are  not  entitled  to  do  so,  as  a  matter  of  right, 
until  afterwards;  for  until  its  genuineness 
has  been  thus  established  prima  facie,  no  doc- 
ument can  be  considered  as  properly  before 
the  court  for  any  purpose.^^  If,  upon  in- 
spection of  the  document,  any  objection  to  its 
admissibility  is  apparent,  it  must  be  stated 
before  the  paper  is  read,  as  otherwise  it  will 
be  considered  to  have  been  waived.  After  a 
document  has  once  been  read  in  evidence,  no 
new  objections  can  be  raised  to  its  admissi- 
bility, excepting  such  as  the  party  objecting 
had  no  opportunity  to  make  sooner,  or  un- 
less the  document  was  expressly  admitted 
subject  to  exception.     In  general,  all  ques- 

"  Jones  V.  Fort,  M.  &  M.,  196;  Rose.  N.  P.,  271 ; 
II  Phil.  Ev.,  4th  Am.  ed.,  C,  H.  &  E.'s  note,  p.  503. 
28  Tay.  Ev.,  §  1413;  Rose.  N.  P.,  185. 


CHAP,  v]  IXTRODUCIKG  DOCUMENTS  811 

tions  as  to  the  admissibility  of  documents 
are  decided  bj^  the  judge  before  they  are  al- 
lowed to  be  read,  unless  the  objection  be 
founded  upon  some  extrinsic  fact  alleged  by 
the  party  objecting.  If  such  extrinsic  fact 
would  constitute  a  valid  cause  for  excluding 
the  document,  and  the  party  objecting  can  es- 
tablish it  by  cross-examination  of  the  witness 
who  proved  the  document,  or  by  other  proof 
not  open  to  contradiction  by  his  opponent,  he 
may  do  so  at  once,  and  so  exclude  the  paper 
altogether;  but  if  the  fact  so  alleged  be  one 
which  is  disputed  by  the  party  offering  the 
document,  then  the  paper  must  be  read  in  evi- 
dence to  the  jury,  who  should  be  instructed  to 
exclude  it  from  their  consideration,  if  they 
find  the  existence  of  the  facts  which  would 
render  it  inadmissible.^*^  Thus  in  an  ac- 
tion for  libel,  where  the  plaintiff  offered 
in  evidence  the  alleged  libelous  paper, 
after  proving  by  a  third  party  that  he  had 
received  it  from  the  defendant,  and  the  lat- 
ter objected  upon  the  ground  of  its  being  a 
privileged  communication,  he  was  permitted 
to  cross-examine  the  witness  in  order  to  show 
its  privileged  character,  and,  having  estab- 

^^  Richardson  v.  Eobbins,  124  Mass.,  105 ;  Coxe  v. 
England,  65  Pa.  St.,  212. 


312  PRODUCTION  OF  EVIDENCE  [PART  III 

lished  this  to  the  satisfaction  of  the  court, 
the  paper  was  not  allowed  to  be  read.^*^  And 
so,  also,  in  a  case  where  the  alleged  libel  was 
an  indorsement  made  by  the  defendant,  a 
naval  officer,  upon  a  resignation  sent  by  the 
plaintiff,  through  him,  to  the  Navy  Depart- 
ment, the  defendant  was  allowed  not  only  to 
cross-examine  the  witness  who  proved  the 
indorsement,  but  also  to  put  in  evidence,  be- 
fore the  paper  was  read,  a  copy  of  the  Regu- 
lations of  the  Navy,  for  the  purpose  of  show- 
ing that  it  was  his  duty  to  make  such  indorse- 
ment upon  the  resignation  under  the  circum- 
stances detailed  by  the  witness. ^^  But  if 
in  either  of  these  cases  the  existence  of  the  al- 
leged facts,  which  made  the  communications 
privileged,  could  not  have  been  established 
by  the  witnesses  who  produced  them,  and  had 
been  open  to  dispute,  and  had  been  denied 
by  the  parties  offering  the  writings  in  evi- 
dence, the  papers  must  have  been  admitted  to 
go  to  the  jury,  subject  to  be  excluded  by  them 
from  consideration  if  they  should  find  the  al- 
leged facts  to  be  true.^^ 

§  129.    Effect  of  alterations  or  spoliation.— 
No  document  which  after  its  completion  has 

30  Trussell  v.  Scarlett,  18  Fed.  Rep.,  214. 

31  Maurice  v.  Worden,  54  Md.,  251. 

32  Odgers  on  Libel  and  Slander,  p.  *185. 


CHAP.    V]  ALTERATIONS  313 

been  altered  in  any  material  point  is  admis- 
sible in  evidence  for  the  purpose  of  enforcing 
any  right  dependent  upon  it  in  favor  of  any 
person  by  whom  or  by  whose  concurrence 
such  alteration  was  made,  or  in  favor  of  the 
representative  in  interest  of  any  such  person, 
unless  the  alteration  was  made  with  the  con- 
sent of  the  party  sought  to  be  charged,  or  of 
his  representative  in  interest.^^  This  rule  is 
founded  upon  the  very  obvious  principle  of 
natural  justice  that  no  one  who  has  designed- 
ly falsified  a  document  should  afterwards  be 
allowed  to  avail  himself  of  such  falsified  docu- 
ment as  evidence  in  his  own  behalf.^^  And 
therefore  one  who  for  this  reason  is  pre- 
cluded from  offering  in  evidence  an  original 
paper  is  not  allowed  to  establish  its  contents 
by  secondary  proof  .^^^    Upon  the  same  ground 

33  1  Whar.  Ev.,  §  632 ;  Ste.  Dig.,  art.  89 ;  1  Gr.  Ev., 
§§  564-568;  Tay.  Ev.,  §§  1819-1838;  1  Thomp.  Trials, 
§§1392-1404;  Woodworth  v.  Bank  of  America,  19 
Johns.,  391;  10  Am.  D.,  239,  note  p.  267;  Smith  v. 
United  States,  2  Wall,  219 ;  Fiilmer  v.  Seitz,  68  Pa. 
St.,  237 ;  8  Am.  E.,  172 ;  Draper  v.  Wood,  112  Mass., 
315;  17  Am.  R.,  96;  2  Elliott  Ev.,  §  1491. 

34  1  Whar.  Ev.,  §  622 ;  1  Gr.  Ev.,  §  565 ;  Tay.  Ev., 
§  1821 ;  Masters  v.  Miller,  4  T.  R.,  329 ;  S.  C,  1  Sm. 
Lea.  Cas.,  *934;  Wood  v.  Steele,  6  Wall.  80. 

35  Id. ;  Martindale  v    Follett,  1  N.  H.,  95 ;  Newell 


314  PRODUCTION  OF   EVIDENCE  [PART  III 

any  person  by  whom  or  by  whose  connivance 
a  document  has  been  fraudulently  destroyed 
or  mutilated  is  not  permitted  to  prove  its  con- 
tents by  secondary  evidence.^^  But  a  person 
who  cannot  be  shown  to  have  been  in  any  way 
responsible  by  negligence  or  otherwise,  and 
who  does  not  claim  as  the  representative  of 
one  who  is  so  responsible  for  such  alteration, 
destruction  or  mutilation  of  a  document  may 
support  his  case  by  any  legal  proof  as  to  what 
such  document  was  before  its  alteration  or 
destruction,  for  otherwise  the  person  who  had 
altered  or  destroyed  a  document  might  de- 
rive a  great  advantage  from  his  own  wrong- 
ful act.^'^  In  the  absence  of  positive  proof  as 
to  when  and  by  whom  any  alterations  appar- 

V.  Mayberry,  3  Leigh,  250 ;  Wood  v.  Steele,  6  Wall., 
80. 

38  Blade  v.  Noland,  12  Wend.,  173 ;  27  Am.  D.,  126; 
Price  V.  Tallman,  1  Coxe,  N.  J.  (L.),  447.  But  see 
Steele  v.  Lord,  70  N.  Y.,  280 ;  26  Am.  E.,  602 ;  Stone 
V.  Sanborn,  104  Mass.,  319 ;  6  Am.  R.,  238. 

37  1  Gr.  Ev.,  §  566 ;  1  Whar.  Ev.,  §  627 ;  Cutts  v. 
United  States,  1  Gall,  69;  6  Fed.  Cas.,  p.  1086; 
United  States  v.  Spalding,  2  Mass.,  278,  482 ;  27  Fed. 
Cas.,  p.  1278 ;  United  States  v.  Linn,  1  How.,  104, 
110;  Rees  v.  Overbaugh,  6  Cowen,  746;  Piersol  v. 
Grimes,  30  Ind.,  129  ;  93  Am.  D.,  673 ;  Hmit  v.  Gray, 
35  N.  J.,  227;  10  Am.  E.,  232;  Drum  v.  Drum,  133 


CHAP.    V]  ALTERATIONS  315 

ent  upon  the  face  of  a  document  were  made, 
the  general  presumption  of  law,  as  already 
stated,^^  is  that  they  were  made  contempora- 
neously with  its  execution,  for  the  law  will  not 
presume  fraud  without  some  evidence  to  sus- 
tain the  imputation;  but  any  ground  of  sus- 
picion appearing  upon  the  face  of  the  instru- 
ment or  arising  from  the  circumstances  of  the 
case  is  sufficient  to  rebut  this  general  pre- 
sumption, and  throws  upon  the  party  offering 
the  document  the  burden  of  showing  how, 
when,  by  whom  and  with  what  intent  such 
alterations  were  made,  it  being  judged  onlj 
reasonable  that  one  who  desires  to  avail  him- 
self of  the  benefit  of  a  document  bearing  sus- 
picious alterations  on  its  face  should  be  pre- 
pared to  show  how  they  came  there.^^  When 
a  document  bearing  alterations  apparent  up- 
on its  face  is  offered  in  evidence  it  is  for  the 
court  to  determine  in  the  first  place  whether 
in  view  of  the  evidence  already  given  in  the 
cause  the  paper  shows  sufficient  grounds  for 
suspicion  upon  its  face  to  rebut  the  general 

Mass.,  566 ;  conf.  Davidson  v.  Cooper,  13  M.  &  W., 
358;  2  Elliott  Ev.,  §  1491. 

38  Ante,  Sec.  79,  p.  174. 

39  1  Gr.  Ev.,  564;  Tay.  Ev.,  §  1819;  ante,  p.  175, 
note  23. 


316  PRODUCTION  OF   EVIDENCE  [PAKT  III 

presumption  against  fraud,  and  to  require  a 
satisfactory  explanation  of  the  alterations 
before  it  can  be  received  in  evidence  at  all; 
but  after  such  explanations  have  been  given 
it  is  for  the  jury  to  decide  as  a  question  of  fact 
what  weight  they  are  entitled  to.^°  The  rule 
requiring  the  person  who  offers  such  a  docu- 
ment in  evidence  to  clear  himself  from  all  re- 
sponsibility for  any  material  alterations  ap- 
pearing upon  its  face  is  in  England  limited  to 
cases  where  the  altered  instrument  is  relied  on 
as  the  foundation  of  a  right  sought  to  he  en- 
forced,'^^  and  has  been  held  not  to  apply  to 
cases  where  such  instrument  was  introduced 
merely  to  prove  a  right  or  title  which,  al- 
though originally  created  by  the  execution 
of  the  altered  paper,  was  no  longer  depend- 
ent upon  its  continuing  efficacy,  or  to  prove 
some  collateral  fact.'*^     An  alteration  is  re- 

"0  1  Gr.  Ev.,  561,  note  1 ;  Abb.  Tr.  Ev.,  eh.  xxi, 
31,  and  note  9;  Id.,  ch.  xlviii,  7  note  6;  1  Whar. 
Ev.,  §  629;  Tillou  v.  Chnton  Ins.  Co.,  7  Barb.,  564; 
Little  V.  Herndon,  10  Wall.,  26,  31 ;  Parramore  v, 
Lindsay,  63  Mo.,  63 ;  Belfast  Nat.  Bank  v.  Harrison, 
68  Me.,  522;  2  Elliott  Ev.,  §  1505. 

41  Tay.  Ev.,  §§  1824-1827;  Davidson  v.  Cooper,  11 
M.  &  W.,  779,  800. 

42  Id. ;  Hutchins  v.  Scott,  2  M.  &  W.,  809 ;  Agr. 
Cattle  Ins.  Co.  v.  Fitzgerald,  16  A.  &  E.,  N.  S.,  433; 


CHAP.    V]  ALTERATIONS  317 

garded  as  immaterial  when  it  does  not  vary 
the  legal  effect  of  the  document,  as  where 
words  are  inserted  which  the  law  would  sup- 
ply, or  which  are  altogether  inoperative,  or 
are  necessary  to  correct  an  obvious  error, 
and  in  such  cases  does  not  affect  the  admis- 
sibility of  the  document  in  evidence.^  ^ 

Ld.  Ward  v.  Lumley,  5  H.  &  N.,  87 ;  15  L.  J.  Ex.,  322 ; 
Lewis  V.  Payne,  8  Cow.,  71;  18  Am.  D.,  427;  Priest 
V.  Whitacre,  78  Va.,  151. 

43  Tay.  Ev.,  §  1883 ;  1  Gr.  Ev.,  §  567 ;  1  Whar.  Ev., 
623 ;  Aldous  v.  Cornwell,  L.  R.,  3  Q.  B.,  573 ;  Craig- 
head V.  McLoney,  99  Pa.  St.,  211,  214.  See  Suffell  v. 
Bank  of  England,  L.  R.,  9  Q.  B.  Div.,  555 ;  Duker  v. 
Franz,  7  Bush,  273;  3  Am.  R.,  314;  Vose  v.  Dolan, 
108  Mass.,  145 ;  11  Am.  R.,  331.  As  to  filling  up 
blanks,  see  Angle  v.  N.  W.  Mut.  Life  Ins.  Co.,  92  U. 
S.,  330 ;  2  Elliott  Ev.,  §  1496. 


CHAPTER  VI. 

PRODUCTION    OF    PERSONS    AND   THINGS. 

§  130.  Production  of  persons  or  things  for 
inspection  by  court  or  jury.— Independently 
of  any  statutory  provision  the  courts  have  a 
discretionary  power  to  compel  the  produc- 
tion before  them  for  inspection  of  any  per- 
son or  tjiing  described  or  referred  to  in  the 
oral  testimony  of  the  witness,  whenever  they 
may  deem  such  inspection  to  be  material 
and  proper  in  order  to  illustrate  or  confirm 
or  contradict  the  oral  testimony  of  tlie  wit- 
nesses as  to  the  identity,  appearance,  condi- 
tion or  nature  of  such  person  or  thing,^  and 
the  exercise  of  this  discretion  will  not  be  re- 
viewed on  appeal  except  in  cases  of  manifest 

^  Best  on  Evidence,  §  197 ;  1  Thomp.  on  Trials,  ch 
XYII,  §  850  et  seq. ;  1  Whar.  Ev.,  §  346 ;  Mulhado  v. 
Brooklyn,  etc.,  R.  R.,  30  N.  Y.,  370;  Schroeder  v. 
Chicago,  etc.,  Ry.  Co.,  47  Iowa,  375;  Springer  v. 
Chicago,  135  111.,  523,  561;  26  N.  E.,  514;  2  L.  R. 
A.,  609;  2  Elliott  Ev.,  §  1231,  etc. 
818 


CHAP,    VlJ  PHYSICAL  EXAMINATION  319 

abuse.^  They  have  a  like  power  to  permit 
any  experiments  to  be  made  before  the  jury 
which  will  elucidate  the  questions  at  issue. ^ 
§  131.  Power  to  compel  parties  to  submit 
to  personal  examination.— Whether,  in  a  civil 
action  for  physical  injuries  sustained  by  the 
plaintiff,  he  may  be  compelled  to  submit  to 
an  examination  of  his  person,  either  by  ex- 
perts before  the  trial  or  by  the  court  or  jury 
at  the  trial,  for  the  purpose  of  ascertaining 
the  nature  and  extent  of  his  injuries,  is  a 
question  upon  which  the  decisions  are  con- 
flicting. While  it  is  permitted  in  some  of  the 
states,^  it  is  held  in  others  and  in  the  courts 
of  the  United  States  that  a  party  cannot  be 

2  Shepard  v.  Mo.  Pac.  Ry.  Co.,  85  Mo.,  629 ;  55  Am. 
E.,  390;  Hatfield  v.  St.  Paul,  etc.,  R.  P.  Co.,  33  Minn., 
130 ;  22  N.  W.,  176 ;  53  Am.  R.,  14 ;  Sidekum  v.  Wa- 
bash, etc.,  Ry.  Co.,  93  Mo.,  400;  4  S.  W.,  701;  3  Am. 
St.  P.,  549  •  Ala.  Gt.  So.  P.  P.  Co.  v.  Hill,  90  Ala. 
71 ;  8  So.,  90;  24  Am.  St.  P.,  764;  9  L.  P.  A.,  442. 
'  3  United  States  v.  Ball,  163  U.  S.,  662,  673.  See 
extended  note  in  Vol.  53,  Am.  St.  R.,  375.  Also 
notes  in  Vol.  15,  L.  R.  A.,  221,  and  Vol.  42,  L.  E. 
A.,  384. 

4  Atchison,  etc.,  Ry.  Co.  v.  Thai,  29  Kan.,  466; 
44  Am.  P.,  659 ;  White  v.  Milwaukee  City  Ry.  Co., 
61  Wis.,  536;  21  N.  W.,  524;  50  Am.  P.,  165;  Ala. 
Gt.  So.  E.  E.  Co.  V.  Hill,  supra. 


820  PRODUCTION  OF   EVIDENCE  [PART  III 

subjected  to  such  an  examination  without 
his  consent.^  There  is  also  conflict  in  the  de- 
cisions of  the  courts  in  different  states  as  to 
how  far  the  accused  in  a  criminal  trial  may 
be  compelled  to  submit  to  a  physical  exam- 
ination without  his  consent.^  It  may  be  safe- 
ly stated  however  as  the  general  rule  that  the 
accused  when  on  trial  may  be  compelled  to 
stand  up.  in  court  for  the  purpose  of  identifi- 
cation and  to  expose  such  parts  of  his  person 
as  are  not  usually  covered,  but  only  such 
partsJ 

§  132.  Power  to  seize  and  impound  things 
to  be  used  as  evidence.— Independently  of  ex- 

^  Eoberts  v.  Ogdensburg,  etc.,  E.  R.  Co.,  29  Hun, 
154;  Parker  v.  Enslow,  102  111.,  273;  Union  Pacific 
Ry.  Co.  V.  Botsford,  141  U.  S.,  250.  But  see  Holt  v. 
United  States,  218  U.  S.  245,  252.  Otherwise  when 
there  is  a  state  statute  permitting  such  examination. 
Camden  &  So.  Ry.  Co.  v.  Stetson,  177  U.  S.,  172,  178; 
United  Railways  v.  Cloman,  107  Md.,  681,  690 ;  69 
A.,  370. 

«  1  Whar.  Crim.  Ev.,  §  315;  State  v.  Ah  Chuey,  14 
Nev.,  79,  83;  33  Am.  R.,  530;  State  v.  Garrett,  71 
N.  C,  85 ;  17  Am.  R.,  3  ;  Stakes  v.  State,  5  Baxt.,  619 ; 
30  Am.  R.,  72 ;  Day  v.  State,  63  Ga.,  667. 

7  State  V.  Height,  117  Iowa,  650;  91  N.  W.,  935; 
94  Am.  St.  R.,  323  and  note;  Holt  v.  United  States, 
218  U.  S.  245,  252. 


CHAP.   Vl]  POWER  TO  SEIZE  321 

press  statutory  authority,  it  has  been  held  to 
be  the  duty  of  the  officers  who  arrest  a  per- 
son on  a  criminal  charge  to  search  him  and 
seize  and  remove  from  him  any  dangerous 
weapons  found  upon  his  person,  and  also  to 
take  from  him  any  articles  which  may  be  of 
use  in  the  trial  of  the  offense  of  which  he  is 
accused,  and  retain  them  in  their  custody  for 
that  purpose.*  But  whether  this  common- 
law  power  extends  so  far  as  to  authorize  the 
court  to  take  into  its  possession  and  retain  for 
future  use  as  evidence  any  things  other  than 
those  found  upon  the  person,  or  in  the  im- 
mediate actual  possession  of  one  arrested  on 
a  criminal  charge,  or  such  as  may  be  volun- 
tarily deposited  in  court  as  exhibits  by  a 
party,  is  at  least  doubtful.  The  question  was 
fully  discussed  in  a  late  case  before  the  su- 
preme court  of  Michigan,®  which  held  that 
where  a  steam-boiler  had  exploded  and  the 

8  Whar.  Cr.  PI.  &  Pr.,  §  60;  Bish.  New  Cr.  Proc, 
§§  210,  211;  Ex  parte  Hurn,  92  Ala.,  102;  9  So., 
515 ;  13  L.  R.  A.,  120 ;  Closson  v.  Morrison,  47  N. 
H.,  483 ;  93  Am.  D.,  459 ;  Spalding  v.  Preston,  21 
Vt.,  9 ;  50  Am.  D.,  68. 

9  Newberry  v.  Carpenter,  107  Mich.,  567 ;  65  N.  W., 
530;  61  Am.  St.  R.,  346  and  note;  31  L.  R.  A.,  163. 
Conf.  Adams  v.  New  York,  193  TJ.  S.,  585. 


322  PRODUCTION  OF  EVIDENCE  [PART  III 

engineer  was  charged  with  manslaughter,  the 
circuit  judge  had  exceeded  his  powers  in 
ordering  the  boiler  and  engine  into  the  cus- 
tody of  the  police,  to  be  used  as  evidence  at 
the  trial.  McGrath,  C.  J.,  however,  delivered 
an  elaborate  and  able  dissenting  opinion. 


PART  IV. 

ON  THE  CONDUCT  OF  THE  EXAMINATION 
OF  WITNESSES. 


CHAPTER  I. 

EXAMINATION    IN    CHIEF. 

§  133.  The  examination  of  witnesses,  an 
art.— The  examination  of  witnesses  is  an  art, 
and  as  with  all  the  other  arts,  in  order  to  at- 
tain the  highest  degree  of  success  in  it,  three 
things  are  requisite,  viz. :  correct  theoretical 
knowledge,  some  practical  experience  in  the 
application  of  that  knowledge,  and  a  pecu- 
liar talent  for  it.  Without  the  last  no  man  can 
ever  become  great  in  this  branch  of  advoca- 
cy; but  any  person  possessing  the  average 
amount  of  tact  and  common  sense,  may,  with 
the  aid  of  the  other  two  requisites,  acquire  a 
respectable  degree  of  proficiency.  It  is  here 
proposed  to  state  briefly  the  general  theory 
upon  which  it  should  be  conducted,  as  laid 
down  by  the  best  authorities  upon  the  sub- 
ject,^ and  confirmed  by  some  personal  ob- 
servation and  experience. 

1  See  Quintilian,  Inst.,  lib.  V,  cap.  De  Testibus ; 
333 


324  CONDUCT   OF   EXAMINATIONS  [PART    IV 

§  134.  Object  of  examination  in  chief,  and 
how  accomplished.— Tlie  duty  of  counsel  in  ex- 
amining a  witness  is  to  elicit  the  truth,  and 
nothing  but  the  truth,  yet  only  so  much  of  it 
as  in  his  judgment  may  be  calculated  to  bene- 
fit the  cause  of  his  client;  and  therefore,  in 
order  to  avoid  making  the  witness  say  any- 
thing else,  the  first  and  most  important  rule 
to  be  observed  is:  Never  to  ask  a  question 
without  a  definite  object,  and,  when  the  wit- 
ness has  given  the  testimony  for  which  he 
has  been  called,  to  discontinue  the  examina- 
tion at  once.  For  any  further  prosecution 
of  the  examination  cannot  possibly  do  the 
case  much  good,  and  may  result  in  a  serious 
disadvantage  to  it  by  bringing  out  something- 
injurious.  Hence  it  is  always  important  to 
ascertain  as  far  as  posible,  before  the  wit- 
ness is  put  upon  the  stand,  exactly  what  facts 
are  expected  to  be  proved  by  him,  and  if 
these  facts  are  at  all  numerous,  it  is  best  for 
the  examining  counsel  to  have  a  brief  memor- 
andum of  them  before  him  during  the  exam- 
Best  on  Ev.,  §§649,  663;  Alison,  Pr.  Crim.  Law, 
546,  547;  Evans  on  Cross-ex.,  in  his  appendix  to  Poth. 
Obi,  No.  16,  vol.  2,  pp.  233,  234;  The  Advocate,  by 
Cox;  Hints  on  Advocacy,  by  Harris;  Sergt.  Ballan- 
tine's  Experiences. 


CHAP.  l]  THE  ORDINARY  WITNESS  325 

ination,  as  few  things  are  more  mortifying 
to  him,  than,  after  turning  a  witness  over  to 
his  adversary,  to  suddenly  remember  that 
he  has  omitted  to  interrogate  him  upon  some 
material  fact  which  cannot  be  proved  by  any 
one  else. 

§  135.  The  ordinary  witness.— For  the  pur- 
poses of  an  examination  in  chief,  witnesses 
may  be  divided  into  three  general  classes :  1. 
The  ordinary  witness,  who  intends  to  tell  the 
truth,  and  whose  bias,  in  so  far  as  he  has 
any,  is  in  favor  of  the  party  by  whom  he  is 
called.  2.  The  swift  witness.  3.  The  hos- 
tile witness.  The  general  rule  for  dealing 
with  the  ordinary  witness  is :  To  put  him  at 
his  ease,  to  direct  his  mind  to  the  matters 
about  which  his  testimony  is  required,  and  to 
let  him  tell  his  story  in  his  own  way,  with  no 
further  interference  than  is  necessary.  The 
best  way  to  do  this  is  to  adopt  a  pleasant, 
respectful  and  friendly  manner,  and  to  begin 
by  asking  a  few  unimportant  questions,  very 
deliberately,  and  in  an  ordinary  conversa- 
tional tone,  in  order  to  give  him  time  to  col- 
lect his  ideas  and  get  over  the  natural  em- 
barrassment which  most  persons  feel  when 
first  put  upon  the  stand,  before  bringing  him 
to  speak  of  the  matters  about  which  his  tes- 
timony is  required.    Having  once  put  the  wit- 


326  CONDUCT  OF  EXAMINATIONS  [PAiT  IT 

ness  at  his  ease  and  started  him  upon  the 
right  track,  it  is  not  well  to  interrupt  him  un- 
necessarily, for  all  interruptions  have  a  ten- 
dency to  confuse  or  irritate;  and  in  order 
to  reduce  this  tendency  to  a  minimum,  when- 
ever interruptions  are  necessary,  as  for  the 
purpose  of  excluding  irrelevant  matter,  they 
should  always  be  made  in  a  pleasant  and 
rather  apologetic  manner.  It  is  best  to  make 
a  witness  relate  the  facts  about  which  he  tes- 
tifies in  the  order  of  time  in  which  they  oc- 
curred, and  it  is  generally  advisable  to  call 
his  attention  as  he  goes  along  to  any  material 
facts  which  he  omits,  in  so  far  as  it  can  be 
done  without  putting  directly  leading  ques- 
tions. As  soon  as  he  has  given  the  testimony 
for  which  he  was  called,  he  should  at  once  be 
turned  over  to  the  other  side  for  cross-exam- 
ination. The  practice  of  cross-examining 
one's  own  witness  and  making  him  repeat  his 
testimony,  is  worse  than  useless.  For  suc- 
cessfully conducting  an  examination  in  chief, 
great  patience  and  good  temper  are  all  im- 
portant, and  especially  is  this  the  case  where 
the  witness  is  stupid.  Nothing  can  be  more 
damaging  than  any  display  of  irritability 
towards  one's  own  witness. 

§  136.    Questions  should  be  simple,  short 
and  deliberately  put.— It  is  of  the  utmost  con- 


CHAP.  l]  THE  ORDINARY  WITNESS  327 

sequence  that  all  questions  should  be  per- 
fectly intelligible,  and  that  in  an  examina- 
tion in  chief  they  should  be  put  deliberately, 
so  that  the  witness  may  have  time  to  take 
them  in  fully  and  not  be  flurried  in  answer- 
ing them.  It  is  far  better  to  ask  half  a  dozen 
short,  simple  questions  than  a  single  long, 
complicated  one  covering  the  entire  ground, 
and  it  is  therefore  important  that  all  ques- 
tions should  be  as  brief  as  possible,  and  al- 
ways clothed  in  such  plain  and  familiar  lan- 
guage as  to  be  fully  understood  by  the  wit- 
ness, especially  if  he  be  an  uneducated  per- 
son. Verbosity  and  pomposity  are  alike  in- 
excusable in  an  examining  counsel. 

§  137.  The  swift  witness.-The  swift  wit- 
ness, or  one  who  wants  to  say  too  much,  is  a 
very  dangerous  character  to  deal  with,  and 
requires  to  be  repressed  instead  of  encour- 
aged. This  is  best  done  by  adopting  a  rather 
grave  and  ceremonious  manner  so  as  to  check 
him  at  the  outset,  and  then  kindly,  but  per- 
emptorily, requiring  him  to  do  no  more  than 
answer  the  questions  put  to  him,  which 
should  be  so  framed  as  to  give  no  room  for 
expatiating.  Such  a  witness  should  be  got 
rid  of  as  soon  as  possible,  for  there  is  al- 
ways the  greatest  danger  that  he  may  seri- 


328  CONDUCT   OF   EXAMINATIONS  [PART    IV 

ously  injure  the  cause  which  he  is  over  anx- 
ious to  sustain. 

§  138.  The  hostile  witness.— A  hostile  wit- 
ness should  never  be  called  excepting  when 
his  testimony  is  absolutely  necessary,  and 
where  this  is  the  case,  the  great  point  is  to 
make  him  state  just  so  much  as  is  required, 
and  no  more.  It  is  well  to  make  his  hostility 
appear  as  soon  as  possible,  for  two  reasons : 
first  because  as  soon  as  the  judge  is  satisfied 
that  he  is  really  an  adverse  witness,  he  will 
permit  leading  questions  to  be  put  on  his  ex- 
amination in  chief;  and  secondly,  because  the 
more  hostile  he  appears  to  the  party  calling 
him,  the  more  will  his  favorable  evidence  be 
esteemed,  and  the  less  weight  will  be  given  to 
whatever  he  says  that  is  unfavorable.  As 
a  general  rule,  the  less  said  to  a  witness  of 
this  kind  the  better.  He  should  be  brought 
directly  to  the  point  which  he  is  called  to 
prove  by  questions  so  framed  as  to  afford  the 
least  possible  room  for  evasion  or  explana- 
tion. All  attempts  at  explanations  should 
be  stopped  by  telling  him  that  he  will  have 
an  opportunit}^  for  making  them  as  soon  as 
he  has  answered  all  the  questions.  When 
this  time  arrives,  he  will  probably  have  for- 
gotten at  least  half  of  them,  and  the  otliers 
will  prove  far  less  effective  than  if  made  in 


CHAP.  l]  THE    ItOSTILE    WITNESS  329 

connection  with  the  statement  of  the  facts 
which  they  are  intended  to  qualify.  It  is 
needless  to  add  that  a  witness  of  this  kind 
should  be  dismissed  at  the  earliest  possible 
moment.  The  importance  of  restricting  the 
testimony  of  a  hostile  witness  within  the  nar- 
rowest possible  limits  is  even  greater  in  the 
United  States  than  in  England,  by  reason  of 
the  rule  generally  prevailing  in  this  country, 
by  which  the  range  of  cross-examination  is 
limited  excepting  (for  the  purpose  of  testing 
or  attacking  his  credibility)  to  the  facts  and 
circumstances  connected  with  the  matters 
stated  by  the  witness  in  his  direct  examina- 
tion. 

§139.  Duties  of  opposing-  counsel  during 
examination  in  chief.— The  duties  of  opposing 
counsel  during  an  examination  in  chief  are  to 
give  the  strictest  attention  to  all  the  ques- 
tions and  answers,  and  to  take  notes  of  the 
testimony.  Attention  must  be  given  to  the 
questions  as  well  in  order  to  see  that  they  are 
properly  put  as  to  ascertain  their  design ;  and 
to  the  answers,  so  as  to  consider  their  effect, 
and  prevent  any  illegal  testimony  from  being 
received  without  objection.  The  notes  of  tes- 
timony are  of  use  principally  as  memoranda 
for  the  cross-examination  and  the  argument 
before  the  jury,  and  also  to  assist  in  prepar- 


330  CONDUCT  OF  EXAMINATIONS         [PART   IV 

ing-  the  bills  of  exception  in  case  of  an  ap- 
peal by  either  party.  Improper  questions 
must  be  objected  to  before  they  are  an- 
swered; and  as  soon  as  a  witness  begins  to 
state  anything  that  is  not  legal  evidence,  he 
should  be  interrupted  with  an  objection  at 
once.  For  instance,  when  a  witness,  after 
stating  that  there  was  some  agreement  made 
between  the  parties  to  the  suit,  begins  to  tell 
what  it  was,  he  should  be  required  to  state 
whether  such  agreement  was  verbal  or  in 
writing  before  being  allowed  to  proceed. 

§  140.  Leading"  questions — Frivolous  ob- 
jections.—Leading  questions  should  never  be 
objected  to,  unless  suggestive  of  an  answer 
in  some  way  material  to  the  case.  As  to  mere 
formal  or  introductory  matters,  about  which 
there  can  be  no  room  for  dispute,  they  are 
not  only  unobjectionable,  but  rather  to  be  en- 
couraged as  calculated  to  save  time,  and  bring 
the  witness  to  the  point  at  once.  As  leading 
questions  are  oftener  put  through  inadvert- 
ence than  designedly,  objection  to  them 
should  not  ordinarily  be  made  to  the  court 
in  the  first  instance,  but  rather  by  a  good- 
natured  caution  to  counsel.  If,  after  such  a 
hint,  he  should  persistently  continue  to  of- 
fend in  the  same  way,  a  more  pereniptory 
tone,  or  a  direct  appeal  to  the  judge,  ^ould 


CHAP.  l]  FRIVOLOUS  OBJECTION'S  331 

be  warranted.  Good  judgment  and  great 
quickness  of  perception,  as  well  as  a  thor- 
ough familiarity  with  the  law  of  evidence,  are 
required  to  know  exactly  when  and  how  to 
object  to  evidence;  for  while  on  the  one  hand 
the  making  of  too  frequent  and  too  frivolous 
objections  is  apt  to  have  a  very  bad  effect  up- 
on the  jury,  especially  if  they  are  overruled, 
yet,  on  the  other  hand,  many  a  case  has  been 
won  solely  through  the  advantages  gained 
by  the  practiced  skill  with  which  the  success- 
ful counsel,  having  perfect  command  of  the 
rules  of  evidence,  could  invoke  and  enforce 
them  at  the  right  moment  against  his  less 
ready  opponent. 


CHAPTER  II. 

CROSS-EXAMINATION. 

§141.    Sergeant    Ballantine's    theory    of 
cross-examination.— Cross-examination    is    a 
most  powerful  weapon  in  the  hands  of  the 
skillful  advocate,  but  likewise  a  dangerous 
one  to  be  trifled  with  by  a  person  who  does 
not  understand  how  to  manage  it,  as  it  is  a 
matter  of  every-day  occurrence  for  a  witness 
who  has  utterly  failed  to  establish  by  his  tes- 
timony in  chief  the  facts  that  he  has  been 
called  to  prove,  to  be  completely  rehabilitated 
by  an  injudicious  cross-examination.    As  Ser- 
geant Ballantine  very  justly  observes,^  ''If 
the  principles  upon  which  cross-examination 
ought  to  be  founded  are  not  understood  and 
acted  upon,  it  is  worse  than  useless,  and  it 
becomes  an  instrument  against  its  employer. 
.     .     .     In   order  to   attain  success   in  this 
branch  of  advocacy,  it  is  necessary  for  coun- 
sel to  form  in  his  own  mind  an  opinion  upon 

^  Some  Experiences  of  a  Barrister's  Life,  H.  Holt 
&  Co.,  N.  Y.,  1882,  pp.  104-6. 
833 


CHAP.  Il]  THE   CROSS-EXAMINATION  333 

the  facts  of  the  case,  and  the  character  and 
probable  motives  of  a  witness  before  asking 
a  question.  This  doubtless  requires  experi- 
ence, and  the  success  of  his  cross-examina- 
tion must  depend  upon  the  accuracy  of  the 
judgment  he  forms."  And  again  he  says, 
*'The  object  of  cross-examination  is  not  to 
produce  startling  effects,  but  to  elicit  facts 
which  will  support  the  theory  intended  to  be 
put  forward." 

§  142.  Never  ask  a  question  without  a  defl- 
nite  object.— The  cardinal  rule  already  given 
for  examination  in  chief.  Never  to  ash  a  ques- 
tion without  a  definite  object,  is  doubly  im- 
portant as  applied  to  cross-examination ;  for 
here  the  witness,  being  presumably  more  or 
less  adverse,  is  much  more  likely  to  say  some- 
thing damaging.  The  plan  so  often  adopted 
by  unskillful  advocates,  of  recklessly  asking 
a  nmnber  of  questions  on  the  chance  of  get- 
ting at  something,  cannot  be  too  much  con- 
demned; for  it  must  always  be  remembered, 
that  what  is  called  a  severe  cross-examina- 
tion, when  applied  to  a  truthful  witness  only 
makes  the  truth  stand  out  more  clearly ;  and, 
also,  that  if  a  dishonest  witness,  having  inad- 
vertently made  an  omission  injurious  to  him- 
self, is  informed  of  its  effect  by  the  counsel 
persistently  dwelliQg  upon  it,  he  will  proba- 


334  CONDUCT   or   examinations  [part    IV 

bly  endeavor  to  shuffle  out  of  it,  and  perhaps 
succeed  in  doing  so.  Hence  the  force  of  Lord 
Abinger's  celebrated  axiom  for  the  conduct 
of  a  cross-examination,  * '  Never  drive  out  two 
tacks  by  trying  to  hammer  in  a  nail." 

§  143.  General  character  of  cross-examina- 
tion, how  determined.— The  manner  of  a  cross- 
examination,  like  its  matter,  must  be  deter- 
mined by  the  nature  of  the  facts  sought  to  be 
elicited,  and  the  opinion  formed  of  the  char- 
acter and  disposition  of  the  witness,  and  the 
motives  by  which  he  is  probably  actuated. 
In  the  great  majority  of  cases,  where  the 
witness  does  not  intend  to  misrepresent,  a 
pleasant,  frank  and  courteous  manner  is  gen- 
erally the  best,  for  the  reason  that  most  peo- 
ple are  much  more  easily  led  than  driven, 
and  a  quarrelsome  frame  of  mind  is  very  apt 
to  induce  a  spirit  of  contradiction.  If,  on  tlie 
other  hand,  it  appears  that  the  witness  de- 
liberately intends  to  misrepresent,  it  is  im- 
portant to  form  an  opinion  as  to  how  far  he 
will  probably  be  willing  to  go — whether  he 
will  flatly  perjure  himself,  if  necessary  for  the 
purpose,  or  whether  he  will  not  venture  be- 
yond equivocation;  for  while  in  the  latter 
case  he  should  be  closely  pressed  upon  the 
more  salient  points  of  his  testimony,  in  or- 
der to  deprive  him  of  every  opportunity  of 


CHAP.  Il]  THE   CROSS-EXAMINATION 

evasion,  such  a  course  would  be  injudicious  if 
he  were  evidently  prepared  to  swear  his  case 
through  at  all  hazards;  for  in  that  event  he 
would  probably  have  made  himself  thorough- 
ly acquainted  with  all  that  he  must  say  in  or- 
der to  sustain  them,  and  therefore  the  more 
rigidly  he  is  cross-examined  upon  these 
points,  the  more  consistent  and  truthful  will 
his  storj^  appear.  In  such  cases  it  is  better 
to  direct  the  cross-examination  to  circum- 
stances about  which  he  would  not  naturally 
expect  to  be  interrogated,  and  for  which  he 
would  not  therefore  be  likely  to  prepare  him- 
self in  advance,  and  to  put  the  questions  in 
rapid  succession.  It  is  quite  possible  for  a 
shrewd  witness  to  concoct  a  story  so  plaus- 
ible and  consistent  with  itself,  as  to  sustain 
triumphantly  the  severest  cross-examination 
upon  everything  connected  with  it,  which  he 
has  thought  over  and  arranged  in  his  own 
mind  before  hand.  But  if  he  is  questioned  in 
regard  to  minute  cirumstances,  having  no 
apparent  immediate  bearing  upon  the  main 
points  at  issue,  it  will  be  almost  impossible 
for  him  to  invent  answers  upon  the  spur  of 
the  moment  that  will  not  be  likely  to  betray 
him.  In  forming  an  opinion  as  to  the  moral 
character  of  a  witness's  testimony,  it  will  be 
well  to  bear  in  mind  the  statement  of  Ser- 


336  CONDUCT   OF   EXAMINATIONS  [PART   IV 

geant  Ballantine,  who  says  that  his  expe- 
rience has  led  him  to  the  conclusion  that  hon- 
est witnesses  endeavor  to  keep  themselves 
to  the  facts  they  come  to  prove,  but  that  ly- 
ing ones  endeavor  to  distract  the  attention  by 
introducing  something  irrelevant.  Often  the 
best  method  to  deal  with  an  adverse  witness 
is  to  decline  cross-examining  him  at  all, 
which,  if  done  with  a  rather  supercilious  air, 
will  frequently  impress  the  jury  with  the 
idea  that  bis  testimony  is  either  totally  un- 
trustworthy, or  else  has  little  or  no  bearing 
upon  the  case. 

§  144.  Things  to  be  avoided  in  cross-exam- 
ination.—The  principal  things  to  be  guarded 
against  in  a  cross-examination  are,  first,  per- 
mitting the  witness  to  supply  any  omissions 
which  he  may  have  made  in  his  testimony  in 
chief;  second,  getting  from  him  explanations 
of  any  apparent  inconsistencies  that  he  may 
have  fallen  into ;  third,  allowing  him  to  repeat 
and  impress  upon  the  jury  the  points  of  his 
testimony  which  tell  most  strongly  in  favor 
of  the  party  who  called  him ;  and  finally,  giv- 
ing the  opposing  counsel  the  opportunity  of 
bringing  out  on  re-examination  some  unfav- 
orable testimony  which  would  not  have  been 
admissible  but  for  an  injudicious  question  put 
during  the  cross-examination.     Hence  it  is 


CHAP.  Il]  THE   CROSS-EXAMINATION  337 

always  advisable  to  keep  in  mind  the  follow- 
ing rules,  and  never  to  depart  from  them 
without  being  able  to  give  a  satisfactory 
reason  for  so  doing: 

Upon  perceiving  that  a  witness  has  omit- 
ted some  important  point  in  his  testimony, 
do  not  allude  to  it,  but  keep  him  as  far  from 
it  as  possible,  that  he  may  not  have  the  op- 
portunity to  repair  his  blunder. 

Never  ask  for  explanations  unless  perfect- 
ly sure  that  they  cannot  be  given,  and  even 
then  be  very  cautious  about  doing  so.  It  is 
always  much  better  to  point  out  the  improb- 
abilities and  contradictions  in  a  witness's 
testimony,  in  the  argument  to  the  jury,  than 
to  let  him  explain  them  away  upon  the  stand. 

Da  not  give  the  witness  the  opportunity 
to  repeat  in  detail  on  cross-examination  the 
strong  points  of  his  testimony  in  chief. 

Never  ask  him  a  question  to  which  he  is  at 
all  likely  to  give  an  answer  adverse  to  your 
case. 

Never  introduce  new  matters  into  the  case 
by  cross-examination,  or  interrogate  the  wit- 
ness about  conversations,  without  having 
considered  what  additional  testimony  his  an- 
swers may  possibly  let  in. 

If  the  witness  have  a  strong  bias  or  preju- 

23 


838  CONDUCT   or   examinations       [part    IV 

dice  against  your  client,  make  this  manifest 
to  the  jury  as  soon  as  possible. 

Never  dispute  with  the  witness. 

Never  attack  a  witness  without  just  provo- 
cation, and  then  let  it  always  plainly  appear 
to  the  jury  that  you  are  in  the  right,  for  oth- 
erwise they  will  be  likely  to  sympathize  with 
him.  Hence,  although  it  may  sometimes  be 
necessary  to  make  the  witness  angry,  nothing 
will  ever  justify  or  excuse  any  display  of 
petulance  or  ill-temper  on  the  part  of  counsel. 

Of  course  the  conduct  of  every  cross-exam- 
ination must  be  governed  in  some  degree  by 
the  circumstances  of  the  case  and  the  partic- 
ular object  to  be  accomplished  by  it,  and 
therefore  occasions  may  arise  which  will  at 
times  require  a  departure  from  every  one  of 
the  foregoing  rules,  excepting  the  one  which 
forbids  putting  any  question  without  a  dis- 
tinct purpose.  This  must  be  rigidly  adhered 
to  under  all  circumstances. 

§  145.  Duties  of  opposing  counsel  during 
cross-examination.— The  duty  of  opposing 
counsel  during  cross-examination  is  to  take 
note  of  all  answers  of  the  witness  which  may 
justify  or  require  him  to  ask  an  explanation 
upon  the  re-examination,  and  not  to  interrupt 
except  in  cases  of  absolute  necessity;  as 
where  the  cross-examiner  puts  a  question 


CHAP.  Il]  THE    CROSS-EXAMINATION  339 

which  is  clearly  inadmisible,  such  as  inter- 
rogating the  witness  about  matters  not  con- 
nected with  the  subject  of  his  examination 
in  chief,  or  cross-examining  him  as  to  al- 
leged previous  statements  in  writing,  without 
producing  the  paper  referred  to  or  satisfac- 
torily accounting  for  its  absence.  Frivolous 
interruptions  of  a  cross-examination  are  not 
only  unjustifiable,  but  extremely  foolish,  for, 
as  they  always  deserve,  they  frequently  get, 
a  sharp  rebuke  from  the  court,  which  is  sel- 
dom without  its  weight  with  the  jury,  who 
are  very  apt  to  attribute  such  interruptions 
to  a  want  of  confidence  on  the  part  of  the 
counsel  making  them,  either  in  his  case  or 
in  his  witness,  since  he  evidently  fears  to 
trust  the  latter  to  take  care  of  himself  in  the 
hands  of  his  adversary. 


CHAPTER  in. 

RE-EXAMINATION. 

§146.    Purpose  and  scope  of  re-examina- 

tion.— Although  the  object  of  the  re-examina- 
tion is  merely  to  give  the  witness  an  oppor- 
tunity to  explain  any  of  his  answers  given  on 
cross-examination  which  may  be  deemed  to 
require  it,  and  its  range  is  therefore  strictly 
limited  to  matters  connected  with  or  relating 
to  such  answers,  yet  it  often  affords  the 
means  of  getting  out  of  the  witness  matters 
which  would  not  have  been  admissible  upon 
the  examination  in  chief;  as  for  example, 
where  a  witness  is  asked  on  cross-examina- 
tion as  to  statements  made  in  a  conversation 
which  he  could  not  have  testified  to  in  chief 
on  behalf  of  the  party  who  called  him,  he  may 
nevertheless  be  required,  on  re-examination, 
to  give  the  whole  conversation,  in  order  to 
explain  the  statements  about  which  he  was 
asked  on  cross-examination.  A  great  matter 
in  re-examination  is  to  be  tolerably  certain 
beforehand  as  to  the  nature  of  the  answer 
which  the  witness  will  give  to  any  question 
you  may  think  of  putting  to  him,  and  also  as 

340 


CHAP.  Ill]  THE  RE-EXAMINATION  341 

to  whether  such  answer  is  likely  to  benefit 
your  case.  If  at  all  doubtful  upon  either 
point,  it  is  better  not  to  ask  the  question,  as 
the  witness  may  be  unable  to  give  the  ex- 
planation asked  for,  or,  when  given,  it  may 
only  sen^e  to  make  matters  worse,  and  new 
matter  thus  brought  out  sometimes  proves 
very  damaging  to  the  case  of  the  party  by 
whom  it  is  elicited.  Therefore,  in  re-exami- 
nation as  in  cross-examination,  the  golden 
rule  is  to  ask  nothing  except  upon  a  reason- 
ably fair  prospect  of  gaining  enough  thereby 
to  justify  the  venture;  and  the  important 
thing  for  a  counsel  to  know  is  when  to  let  well 
enough  alone.  In  many  cases  a  skillful  advo- 
cate can  with  great  effect  avail  himself  of  the 
re-examination  to  make  his  witness,  in  the 
course  of  his  explanation  of  the  answers  giv- 
en on  cross-examination,  go  over  again  the 
more  important  points  of  his  testimony  in 
chief,  and  thus  impress  them  more  forcibly 
upon  the  minds  of  the  jury. 

§147.  Duties  of  opposing  counsel  during 
re-exajnination.— The  duty  of  opposing  coun- 
sel pending  re-examination  is  to  object  to 
leading  questions,  and  prevent  the  witness 
from  giving  evidence  of  any  new  matters, 
not  strictly  explanatory  of  his  testimony  on 
cross-examination. 


INDEX. 

[references  are  to  pages] 


Access,   when  presumed,  125. 

Accomplice,   evidence  of,   must  generally  be  cor- 
roborated, 144. 

Acquiescence,  what  is,  so  as  to  bind  the  party,  32. 

Acts  of  congress,  public,  judicially  noticed,  96. 

Acts,  legislative,  public,  judicially  noticed,  96. 

Acts  of  state,  statements  as  to  in  statutes,  procla- 
mations, etc.,  when  relevant,  47. 

Admiralty,  courts  of  and  seals  judicially  noticed, 
98. 

Admissions,  definition  of,  30. 
when  relevant,  30, 
in  divorce  cases,  30. 
how  they  may  be  made,  32. 
whole  statement  must  be  considered,  33. 
by  whom  they  may  be  made,  34. 
by  parties  and  privies,  34. 
by  those  whose  interest  a  party  represents,  35. 
by   one  suing   in   a   representative   character 
merely,  35. 

S13 


344  INDEX 

[references  are  to  pages] 

Admissions  by  those  jointly  interested  with  party, 
36. 
must  be  made  while  joint  interest  subsists,  36. 
by   former  partner  after  dissolution   of  firm 
as  to  claim  barred  by  limitation,  effect  of, 
37. 
by  those  whom  party  has  authorized  to  make 
them,  as  counsel,  attorneys,  agents,  etc.,  37. 
by  persons  referred  to  by  party,  38. 
by    principal,    when    receivable    against    his 

surety,  38. 
offers  of  compromise  not  admissions,  39. 
but  otherwise  as  to  independent  facts  admit- 
ted during  treaty  of  compromise,  40. 
made  under  duress,  excluded,  40. 
(See  Confessions.) 
Adverse  possession,   presumption  from,  123. 
Affirmation,  in  place  of  oath,  270. 
Affirmative   (see  Burden  of  proof). 
Agent,  how  far  his  admissions  bind  principal,  37. 
Agreement  (see  Contract). 

Alteration  of  written  contracts  by  subsequent  oral 
agreements,  157. 
of  documents,  effect  of,  312-317. 
presumptions  as  to,  174,  315. 
Atheists,   incompetent  witnesses   at   common   law, 
246,  247. 


INDEX  345 

[references  are  to  pages] 

Attested  documents  must  be  proved  by  at  least  one 

attesting  witness,  if  any  alive,  134-136. 

except  in  certain  enumerated  cases,   136-139. 

Attorneys  and  counsel,   how   far  admissions  bind 

principal,  37. 

communications   with    client    privileged,    260- 

263. 
when  not  compellable  to  produce  documents, 
308. 
Begin,  right  to,  how  determined,  239-243. 
Belief  (see  Opinion). 
Bible,  family  (see  Pedigree). 
Bodily  feeling,  statements  showing,  when  relevant, 

13. 
Books  of  corporation,  when  evidence,  51. 

medical  and  scientific,  50. 
Boundaries,  when  provable  by  general  reputation, 

65. 
Burden  of  proof,  lies  on  party  substantially  assert- 
ing affirmative  of  the  issue,  165. 
except  where  disputable  presumption  of  law 

exists  in  his  favor,  167. 
or  the   subject-matter   of   his   allegation    lies 
peculiarly  within  the  other  party's  knowl- 
edge, 175-177. 
in  particular  classes  of  cases,  178. 


346  INDEX 

[references  are  to  pages] 

Burden  of  proof  as  to  jurisdictional  facts,  179. 
in  suits  by  and  against  special  characters,  183. 

(a)  partners,   183. 

(b)  executors  and  administrators,  185. 

(c)  trustees,  187. 

(d)  receivers,  189, 

(e)  assignees,  192. 

(f)  heirs,  devisees,  legatees,  etc.,  194. 
as  to  wills,  197. 

(g)  associations,  199. 
(h)  corporations,  201. 

(i)  husband  and  wife,  205. 
in  actions  ex  contractu,  209. 
in  actions  ex  delicto,  211. 
in  particular  actions  ex  delicto,  212. 
in  case  for  negligence,  213. 
in  suits  against  public  officers  for  breach  of 

duty,  214. 
in  actions  for  deceit  and  fraud,  214. 
in  wrongful  conversion  of  personal  property, 

215. 
in  trespass  to  personal  property,  216. 
in  trespass  to  real  property,  216. 
in  action  for  nuisances,    217. 
in  action  of  replevin,  217. 
in  action  for  assault  and  battery,  218. 


INDEX  347 

[references  are  to  pages] 

Burden  of  proof  in  action  for  malicious  prosecu- 
tion, 220. 
in  action  for  false  arrest  and  imprisonment, 

222. 
in  action  for  slander  or  libel,  224. 
in  action  for  alienating  affections,  227. 
in  action  for  enticing  away  servant,  228. 
in  action  for  seduction,  228. 
in  action  for  criminal  conversation,  229. 
in  action  of  ejectment,  230. 
when  limitations  pleaded,  230. 
when  on  defendant,  231. 
when  shifted,  233. 

quantity  of  evidence  required  to  sustain,  234. 
Cause,  facts  showing  probable  cause  for  existence 
of  fact  in  issue  or  relevant  thereto,  are  generally 
relevant,  15,  20. 
Certified  copies  of  documents,  when  admissible,  140. 
of  public  documents,  primary  evidence,  140, 
141. 
Character,  generally  irrelevant,  23. 

but  admissible  in  favor  of  a  person  indicted 

criminally,  24. 
or  when  put  directly  in  issue  by  the  nature  of 
the  action,  24. 
Circumstantial  evidence  defined,  8. 
Clergymen,    confidential    communications    to,    not 


348  INDEX 

[references  are  to  pages] 

privileged  at  common  law,  262;  but  made  so  by 
statute  in  some  states,  id. 
Communications  during  marriage,  privileged,  252- 

251 
Comparison   of  handwriting,   to  what  extent   ad- 
mitted, 91,  92. 
Competency  of  witnesses  (see  Witness),  244-262. 
Complaint    of   person    against    whom   crime   com- 
mitted, fact  of,  relevant,  but  terms  not,  17. 
Compromise,  offer  of,  not  an  admission,  39. 
Conclusive  presumptions   (see  Presumptions). 
Conduct  of  the  examination  of  witnesses,  323-341. 
the  examination  in  chief,  323-331. 
the  cross-examination,  332-339. 
the  re-examination,  340,  341. 
Confessions  not  made  voluntarily,  excluded,  41. 
what  deemed  involuntary,  41. 
facts  discovered  by  means  of  involuntary,  may 

be  proved  by  other  evidence,  42. 
sworn,  made  by  accused  deemed  involuntary 

at  common  law,  43. 
how   far  this  rule  modified  by  statutes  per- 
mitting accused  to  testify,  quaere,  44. 
made  under  promise  of  secrecy,  or  obtained 
by  deception,  not  involuntary,  45. 


INDEX  349 

[references  are  to  pages] 

Confession,  failure  to  warn  prisoner  does  not  ren- 
der them  inadmissible,  46. 
Confidential  communications   (see  Privileged  com- 
munications). 
Confirmation   of   testimony  of  accomplices,   when 

required,  269. 
Conspirators,  when  bound  by  each  other's  acts  and 
declarations,  13,  14. 
judge  must  be  satisfied  of  prima  facie  case 
against,  14. 
Contract,  written,  terms  of  must  be  proved  by  the 
writing  itself,  if  obtainable,  130,  150 ;  except 
in  certain  cases,  151,  158. 
to  what  extent  its  terms  may  be  interpreted 
or  explained  by  extrinsic  evidence,  160-164. 
Conviction,  record  of,  is  the  only  proper  evidence, 
except  when  admitted  on  cross  examination  by 
the  party  himself,  282,  note. 
Copies  of  documents,  when  equivalent  to  exempli- 
fication, 139-143. 
Copy,  proof  by,  in  what  cases  allowed,  131,  139-148. 
Corporation  when  books  of  evidence,  51. 

burden  of  proof  in  cases  by  and  against,  201- 
204. 
Corroboration  required  to  overcome  sworn  answer 
in  chancery,  268. 


350  INDEX 

[references  are  to  pages] 

Corroboration  of  plaintiff  in  divorce  proceedings, 
generally  required,  269. 
required   in   criminal   cases   when   only   testi- 
mony is  that  of  accomplice,  269. 
Counsel    (see  Privileged  communications). 
Course  of  business,  relevancy  of,  16. 
Credit  of  witnesses,  impeaching,  288-299,  (see  Wit- 
ness). 
Crime,  conviction  of,  disqualified  witness  at  com- 
mon law,  248. 
may  in  most  states  be  proved  to  affect  the  cred- 
ibility of  a  witness,  249. 
Crimen  falsi,  what,  248. 

Crimes,  what  render  witness  incompetent  at  com- 
mon law,  248. 
Cross-examination  of  witnesses,  281-290. 
to  what  must  be  directed,  281. 
questions  lawful  in,  282-287. 
as  to  inconsistent  statements,  288-290. 
conduct  of,  332-338. 
Custom,  how  proved,  65,  77. 

proof  of,  to  what  extent  admitted  to  explain 
or  vary  terms  of  written  contract,  155-157. 
Date  of  document,  presumption  as  to,  173. 
Death,  presumption  of,  171. 
Declarations,  or  statements  made  by  persons  since 


INDEX  351 

[references  are  to  pages] 

dead,  insane  or  absent  from  the  state,  when 
admitted  in  evidence,  29,  66. 
evidence  given  in  former  proceeding,  67. 
dying,  admissible  to  prove  cause  of  death,  69. 
made  in  the  ordinary  course  of  business,  70; 
written  entries,  70;  made  by  party  in  his 
own  shop  books,  71,  note, 
made  against  interest  of  declarant,  72. 
of  testator  as  to  contents  of  will,  76. 
as  to  any  public  or  general  right  or  custom, 

77. 
as  to  matters  of  pedigree,  79 ;  entries  in  fam- 
ily Bible,  82. 
Deeds,  presumption  as  to  sealing  and  delivery  of, 

173,  174. 
Depositions  of  witness,  how  taken,  271. 

when  admissible  in  evidence,  271,  272. 
Disputable  presumptions  of  law,  167-175. 

(See  Presumptions.) 
Documents,  how  put  in  evidence,  109,  300,  309-312. 

effect  of  alteration  or  spoliation  of,  312-317. 
Duress,  confessions  made  under  duress,  excluded, 

40-42. 
Dying  declarations,  when  admissible,  69. 
Entry  in  public  record,  made  in  performance  of 
duty,  relevant,  47,  48. 


352  INDEX 

[references  are  to  pages] 

Entry  in  books  of  corporations,  for  what  purposes 

relevant,  51. 
by  deceased  person,  made  in  ordinary  course 

of  business,  70. 
or  in  books  of  account  when  against  his  own 

interest,  72. 
in  party's  own  books,  when  relevant,  71,  and 

note, 
in  family  Bible  or  Testament,  admissible  to 

prove  pedigree,  82. 
Estoppel,  doctrine  of,  126. 

of  acceptor  of  bill  of  exchange,  127. 
of  tenant,  licensee,  bailee  or  agent,  128. 
Evidence,  definition  of,  4. 

direct  and  circumstantial,  8. 
relevancy  of  evidence,  how  determined,  9,  10, 
res  gestce  admissible  as  evidence,  11-14. 
facts  showing  probable  cause  generally  rele- 
vant, 15. 
ordinary  course  of  business,  16. 
probable  effects  may  be  shown  in  evidence,  16- 

18. 
explanatory  facts,  19. 
res  inter  alios  not  admissible  in,  21. 


INDEX  353 

[references  are  to  pages] 

Evidence,  character,  hearsay  and  opinion  generally 
inadmissible,  23. 
best  attainable  required,  93. 
all  facts  not  judicially  noticed  or  expressly  ad- 
mitted must  be  proved  by,  94,  95, 
oral  (see  Oral  evidence), 
real,  109,  112. 
primary  and  secondary,  132,  133. 

(See  Facts;  Presumptions;  Witness.) 
Examination  of  M'itness,  273-299   (see  Witness). 

theory  of  the  conduct  of,  323-341. 
Examined  copy  of  public  document,  139-143. 
Exemplifications,  what  are,  142. 
Experiments,  20  note,  319. 
Experts,  who  are,  87. 

to  what  matters  they  may  give  opinions,  87-89. 
testimony  of,  as  to  handwriting,  90-92. 
Facts   must   always   be   proved,   unless   judicially 
noticed  or  expressly  admitted,  94-107. 
what  judicially  noticed,  94-104. 
in  issue,  definition  of,  7. 
relevant  to  the  issue,  what  are,  9. 

those  forming  part  of  same  transaction, 
11. 

statements  accompanying  an  act,  12. 
2S 


354  INDEX 

[references  are  to  pages] 

Facts  relevant  acts  of  conspirators,  14. 

facts  showing  probable  cause,  15. 
ordinary  course  of  business,  16. 
natural  effects,  17. 
complaints,  17. 
facts  showing  animus,  18. 
similar  occurrence  showing  intention,  19. 
facts  explanatory  of  relevant  facts,  19. 
all  facts  connected  with  another  by  way 
of  cause  and  effect  not  necessarily  rele- 
vant thereto,  22. 
character,  hearsay  and  opinion  generally 
irrelevant,  23. 
ultimate,  defined,  109. 

must  be  established  by  direct  oral  testi- 
mony, except  in  four  cases,  108. 
Foreign  acts  of  state,  how  proved,  47. 
Foreign  judgments,  practically  the  same  doctrine 
applicable  to  them  as  to  domestic  judgments, 
62 ;  how  proved,  62, 142 ;  attachment,  burden 
of  proof  of  defendant's  non-residence,  177; 
note  182. 
laws,  how  proved,  89,  142. 
General   reputation,    in   what   cases   relevant,   24, 
63-66. 
(See  Character.) 


INDEX  355 

[references  are  to  pages] 

Handwriting,  opinion  as  to  disputed,  90-92, 

what   persons   deemed   competent   to    express 

opinion  as  to,  90. 
comparison  of  disputed  with  genuine,  91,  92. 
Hearsay,  generally  irrelevant,  26. 
Hearsay,  exceptions  to  rule  excluding,  28-30. 
Husbands  and  wives,  confidential  communications 
between,  privileged,   254. 
when  competent  witnesses  for  or  against  each 
other,  252. 
Information  as  to  commission  of  offense,  258. 
Innocence,  presumption  of,  168. 
Inquisitions,  prima  facie  evidence  only,  58. 
Insanity,  generally  held  in  United  States  to  have 
same  effect  as  death  in  rendering  declara- 
tions admissible,  30. 
opinions  of  witnesses  as  to,  85,  86. 
Inspection  of  private  writings,  302-307. 
Interlineation   of   documents,   presumption   as   to, 

and  effect  of,  174,  312-317. 
Interpretation  of  documents  by  extrinsic  evidence, 

160-164. 
Judges,  their  competency  and  privileges,  254. 
Judgment,  conclusive  evidence  of  the  substantive 
facts  recited.  52. 


356  INDEX 

[references  are  to  pages] 

Judgment  not  evidence  of  the  correctness  of  the 
decision    rendered,    except    as   between   the 
parties  and  their  privies,  55. 
or  when  declaratory  of  the  status  of  a  person 

or  thing,  58,  59, 
and  in  certain  cases  involving  custom  and  ped- 
igree, 58. 
who  are  parties  to  a,  60. 
must  be  proved  by  records  of  the  court,  129. 
Judicial  notice,  of  what  facts  courts  take,  95-104. 
when  courts  may  refuse  to  take  judicial 
notice  of  such  facts,  104. 
proceedings,  how  proved,  129. 
Jurisdiction  of  court  rendering  judgment  may  al- 
ways be  inquired  into,  61. 
Jurors,  when  competent  to  testify,  256,  257. 
Leading  questions,  278,  285,  291,  330. 
Legal  advisers,  confidential  communications  with, 

260-263. 
Legislative    acts    of    states    and    territories,    how 

proved,  130. 
Legitimacy,  when  presumed,  125. 
Life  Tables  admitted,  50. 
Magistrate,  confessions  made  to,  43-45. 
Maps,  49. 
Marriage,  communications  during,  privileged.  254. 


iNDSZ  357 

[references  are  to  pages] 

Marriage,  opinion  as  to  existence  of,  196. 
Medical  men,  confidential  communications  to,  not 

privileged  at  common  law,  262. 
Motive,  relevancy  of  facts  supplying  motive,  15. 
Negative  (see  Burden  of  proof). 
Notice  to  produce,  rules  as  to,  145-147. 
Oath,  nature  of,  270. 

how  administered,  270, 

all  oral  testimony  must  be  given  under,  270. 
Objections  to  evidence  when  and  how  to  be  made. 

244,  273,  etc. 
Office,  appointment  to,  when  presumed,  175. 
Opinions,  generally  irrelevant,  83. 

formed  from  personal  observation  admissible, 
when  the  best  evidence  that  the  nature  of 
the  case  admits  of,  84,  85. 
of  subscribing  witnesses  to  a  will  as  to  testa- 

tator's  sanity,  85,  86. 
of  experts,  when  admissible,  87-89. 
as  to  handwriting,  90-92. 
Oral  evidence,  all  ultimate  facts  must  be  proved 
by,    except    in    certain    enumerated    cases, 
108-110. 
may  not  be  received  to  controvert  conclusive 
presumptions  of  law,  121-128. 


353  INDBX 

[references  are  to  pages] 

Oral  evidence  excluded  as  to  matters  of  which  law 

requires    full    ofScial    record    to    be    kept, 

128-130. 
contents  of  written  instrument    may    not    be 

proved  by,    except  in    certain    enumerated 

cases,  130-133. 
may  not  be  given  to  prove  or  vary  terms  of 

written  contract,   150-153. 
rule  only  extends  to  writings  intended  as  a 

binding  statement  of  contract,  153,  154. 
admitted  to  prove  collateral  agreement,  155. 
or  usage,  155-157. 

or  subsequent  parol  modification,  157, 
rule  limited  to  controversies  between  parties 

and  those  claiming  under  them,  158-160. 
how  far  meaning  of  writing  may  be  explained 

by,  160-164. 
how  it  may  be  taken,  271-272. 
Order  of  proof  discretionary  with  judge,  243. 
Overt  act,  proof  of,  in  treason,  267. 
Parol  evidence  (see  Oral  evidence). 
Parties  incompetent  as  witnesses  at  common  law, 

249. 
how  far  made  competent  by  statute  in  United 

States,  250-254. 
to  negotiable  instruments,  incompetent  to  im- 
peach them.  259. 


INDEX  359 

[references  are  to  pages] 

Pedigree,  matters  of,  how  proved,  79-82. 
Perjury,   what  amount   of   evidence   necessary    to 

establish,  267. 
Physicians  generally  obliged  to  disclose  confidential 

communication,  262. 
Phonographic  records,  119,  120. 
Photographs,  113-116. 

Preparation,  relevancy  of  facts  constituting,  15, 
Presumption,  conclusive,  defined,  121. 

of  title  from  twenty  years'  adverse  pos- 
session, 123. 
of  the  correctness  of  judicial  proceeding, 

123. 
that  instrument  under  seal  has  been  made 
upon    good    consideration,    if    not    im- 
peached, 123. 
of  the  regularity  of  acts  done  under  legal 
authority,  after  lapse   of  thirty  years, 
124. 
in  respect  to  capacity  of  infants,  124. 
as  to  legitimacy,  125. 
resting  upon  doctrine  of  estoppel,  126. 
disputable,  effect  of,  in  shifting  the  burden  of 
proof,  167. 
of  innocence,  168. 


360  INDIX 

[references  are  to  pages] 

Presumption  disputable  as  to  coercion  of  wife 
committing  felony  in  company  with  her 
husband,  169. 

that  every  sane  man  contemplates  the  nat- 
ural consequences  of  his  intentional 
acts,  169. 

of  the  continuance  of  state  of  things  once 
proved  to  exist,  170. 

of  the  death  of  a  person  not  heard  from 
for  seven  years,  171. 

of  sanity,  171. 

that  a  person  sued  in  a  written  contract 
who  pleads  infancy  is  of  full  age  in 
the  absence  of  proof  that  he  is  not,  172. 

of  the  regularity  of  judicial  and  official 
acts,  172. 

as  to  the  identity  of  two  persons  having 
the  same  name,  172. 

as  to  date  of  documents,  173. 

as  to  sealing  and  delivery  of  deeds,  173. 

that  documents  thirty  years  old,  produced 
from  proper  custody,  are  genuine,  174. 

as  to  alterations  and  interlineations,  174. 

that  a  person  who  acted  in  any  official 
capacity  was  duly  authorized,  175. 


INDEX  361 

[references  are  to  pages] 

Previous  conviction,  proof  of,  when  relevant,  248, 
297. 
must  be  proved  by  record,  282,  note. 
Primary  evidence  of  documents,  what,  130-133. 
Privileged  communications,  254-266. 
between  husband  and  wife,  254. 
to  public  officers  and  grand  jurors,  256. 
as  to  state  secrets,  256,  266. 
between  legal  adviser  and  client,  260-263. 
Proclamation  recital  of  facts  in,  admissible  when 

relevant,  47. 
Production  of  document,  how  enforced,  300-312. 

of  persons  or  things  as  evidence,  318-322. 
Professional     communications,     when     privileged, 

260-263. 
Public  documents,  how  proved,  139-143. 

certified  copies  of,  140. 
I        right,    common   to   all   citizens   of  state,  how 

proved,  77,  78. 
Beeitals  of  public  facts  in  statutes  and  proclama- 
tion, when  relevant,  47. 
Refreshing  memory  by  document,  when  admissible, 

279-281. 
Relevancy  of  facts,  how  determined,  9-23. 
(See  Evidence;  Facts.) 


362  INDEX 

[references   ABE   TO   PAGES] 

Right  to  begin,  239. 

when  plaintiff  has,  241. 
Secondary  evidence,  131-134,  139-150. 
Silence,  when  decreed  admission,  32. 
Spoliation  of  documents,  effect  of,  312-317. 
Statements  accompanying  or  explaining  act,  how 
far  relevant,  12-14. 
by  deceased,  insane  or    absent    persons,    rele- 
vancy of,  66-82. 
previously  made  by  witness  inconsistent  with 
his  testimony,  may  be  proved  when,  288-295. 
in  works  of  history,  almanacs,  maps,  etc.,  how 

far  relevant,  49. 
made  in  presence  of  party  to  suit,  32. 
Subpoena  duces  tecum,  307. 

party  to  suit  may  be  compelled  to  produce  doc- 
uments by,  301. 
Telegrams,  when  primary  evidence,  133. 
Telephone,  conversations  by,  33,  116-118. 
Things  produced  as  evidence,  109,  318-322. 
Treason,  two  witnesses  always  required  in  prose- 
cutions for,  267. 
Usage,  proof  of,  wher  admissible  to  explain  written 
contract,  154. 

more  than  on?  witness  ordinarily  required  to 
establish  general  usage,  268. 


INDEX  363 

[references  are  to  pages] 

Witness,  presumed  to  be  competent  until  the  con- 
trary is  affirmatively  shown,  244. 

when  objection  to  competency  of,  must  be  made, 
244. 

what  rendered  incompetent  at  common  law, 
245. 

want  of  mental  capacity'-,  245. 

want  of  religious  belief,  246,  247. 

conviction  of  any  infamous  crime,  248. 

being  a  party  to  the  record  or  interested  in 
the  result  of  the  suit,  247;  this  disqualifica- 
tion now  abolished  by  statute,  250-252. 

being  husband  or  wife  of  party  to  record,  252. 

forbidden  to  testify  as  to  certain  matters,  253. 

confidential  communication  between  husband 
and  wife,  254. 

how  far  judge  may  be  examined  as,  254,  255. 

as  to  what  matters  grand  or  petit  juror  may 
be  a,  256,  257. 

communications  made  to  public  officers  and 
grand  jurors  with  a  view  to  criminal  prose- 
cutions may  not  be  disclosed  by,  258. 

state  secrets  may  not  be  disclosed  by,  258, 

parties  to  negotiable  instruments  incompetent 
to  impeach  them,  259. 


364 


IKDEX 


[references  are  to  pages] 

Witness,  legal  adviser  may  not  disclose  confiden- 
tial communications  of  liis  client,  260-262. 

privilege  of  client  as  to  disclosing  communi- 
cation made  by  him  to  legal  adviser,  262. 

privileged  as  to  facts  tending  to  criminate 
him,  263-266. 

privilege  of  government  and  state  officials  aa 
to  public  matters,  266. 

when  corroboration  required  to  testimony  of 
single,  266-269. 

must  be  examined  on  oath  or  affirmation,  270. 

in  open  court,  or  under  a  coi  ^nission,  or  by 
deposition,  271,  272. 

when  and  how  objections  to  deposition  may  be 
made,  273-277. 

examination  in  chief,  277. 

leading  questions  forbidden,  278. 

except  by  permission  of  court  in  special  cases, 
278. 

irrelevant  and  irresponsive  answers  excluded, 
278,  279. 

refreshing  memory,  279-281. 

cross-examination  of,  281. 

confined  to  matters  connected  with  testimony 
in  "hief,  281,  282. 


INDEX  365 

[references  are  to  pages] 

Witness,  questions  to  test  accuracy  and  credibility, 
282. 

privilege  as  to  questions  tending  to  criminate 
him,  283. 

extent  to  which  cross-examination  to  test  cred- 
ibility may  be  carried  is  always  discretion- 
ary with  court,  284. 

rule  for  exercise  of  this  discretion  as  laid  down 
in  India  evidence  act,  285,  note, 

leading  questions  generally  allowed  on  cross- 
examination,  285,  286. 

how  far  his  answers  on  cross-examination  may 
be  contradicted,  286,  287. 

his  previous  inconsistent  statements  may  be 
shown  when  proper  foundation  laid,  288. 

when  his  previous  inconsistent  statements  in 
writing  may  be  shown,  289,  290. 

re-examination  of,  to  what  restricted,  290,  291. 

leading  questions  forbidden  on  re-examination, 
291. 

impeaching  credit  of,  292-299. 

party  may  not  impeach  credit  of  his  own,  293. 
but  may  contradict  his  own,  293,  294. 

of  adversary,  may  be  impeached  by  showing 
bias,  295. 


366  INDEX 

[eeperences  are  to  pages] 

Witness  impeached  by  showing  previous  convic- 
tion of  infamous  crime,  295-297. 

or  general  reputation  for  want  of  veracity, 
297-299. 

may  be  compelled  to  produce  documentary  evi- 
dence material  to  the  case  by  subpoena  duces 
tecum,  301. 

(See  Conduct  of  the  examination  of  witnesses.) 


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